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THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


READINGS 


IN  THE 


AN  ELEMENTARY  COLLECTION  OF 
AUTHORITIES  FOR  STUDENTS 


SELECTED  AND  EDITED 

BY 

GEORGE  W.  KIRCHWEY 

Nash  Professor  of  Law  in  Columbia  University 


NEW  YORK 
BAKER,  VOORHIS  &  CO. 

IQOO 


K 


Copyright,  1900, 
By  GEORGE  W    KIRCHW«T. 


TMS  tUHN  PRINTING  HOUSE,  NEW  YORK. 


PREFACE, 

0 

THE  collection  herewith  submitted  has  no  more  ambitious 
aim  than  to  bring  within  the  reach  of  students  the  necessary 
material  for  an  understanding  of  the  law  of  real  property. 
It  is  not  primarily  a  book  of  "  sources,"  nor,  strictly  speak- 
ing, a  compilation  of  authorities,  but,  as  its  title  indicates,  a 
series  of  carefully  selected  readings  on  the  elements  of  prop- 
erty law,  the  several  topics  being  treated  by  those  who  have 
— for  the  purposes  of  the  student  and  within  permissible 
limits  of  space — most  clearly  and  adequately  expounded 
them.  The  service  which  it  seeks  to  render  has  for  a  hun- 
dred years  been  performed  for  the  American  student  by  the 
second  book  of  Blackstone's  immortal  commentary  on  the 
common  law,  but  a  variety  of  causes — the  development  of 
the  law  since  Blackstone's  day,  the  rise  of  the  new  school  of 
historical  students  of  our  law,  and,  perhaps,  a  diminishing 
reverence  for  great  names  of  the  past  (other  signs  of  which 
are  not  wanting  horis  novissitnis} — have  combined  to  ren- 
der that  work  antiquated  (in  Lord  Coke's  sense  of  the  term) 
and  unavailable  for  use  as  an  introduction  to  the  law  of  real 
property. 

That  no  one  has  arisen  to  do  for  us  moderns  what  Black- 
stone  did  so  well  for  our  predecessors,  is  a  commonplace  of 
the  law  schools.  A  real  introduction  to  the  English  and 
American  law  of  land,  which  shall  acquaint  the  student  with 
the  living  sources  of  that  law  without  leading  him  through 
the  dreary  waste  of  technicalities  and  obsolete  doctrines 


G48574 


iv  PREFACE. 

with  which  its  course  is  encumbered,  which  shall  deal  with 
the  law  of  real  property  as  a  vital  thing,  having  actual  rela- 
tions to  the  life  of  the  community  and  not  as  an  artificial 
system,  invented  to  fasten  the  yoke  of  feudalism  on  a  free 
people  and  perpetuated  to  preserve  a  monopoly  of  injustice 
to  conveyancers, — this  is  the  great  desideratum  of  our  legal 
education.  The  editor  of  this  collection  has  long  contem- 
plated the  writing  of  such  a  book,  not  without  a  hope,  how- 
ever, that  some  more  competent  hand  would  render  the  ser- 
vice in  more  adequate  fashion  than  he.  could  expect  to  do.  In 
the  meantime,  this  collection  of  extracts  from  the  writings 
of  the  masters  of  the  law  is  offered  to  students.  It  will  at 
least  save  them  the  labor  of  hunting  through  scores  of  vol- 
umes in  search  of  the  most  authoritative  and  lucid  exposi- 
tions of  the  doctrines  considered. 

The  gratitude  of  the  editor  is  due  to  all  those  who  have, 
by  their  generous  contributions  from  their  writings,  made 
such  a  collection  possible.  He  desires,  however,  to  make 
particular  acknowledgment  of  his  indebtedness  to  Professor 
John  C.  Gray,  of  the  Harvard  Law  School,  whose  ripe  learn- 
ing and  indefatigable  labors,  not  less  than  his  stimulating 
example  as  a  legal  writer  and  teacher,  have  brought  the  sci- 
entific study  of  the  law  of  real  property  within  the  reach  of 
all  earnest  students. 

COLUMBIA  UNIVERSITY,  February,  1900. 


TABLE  OF   CONTENTS. 


BOOK  I. 

THE  PLACE  OF  REAL  PROPERTY  IN  THE 
COMMON  LAW  SYSTEM. 

CHAPTER  I. 

CLASSIFICATION  OF  PROPERTY — 

(a)  THE   NATURAL   CLASSIFICATION,        .        .  I 

(&)  THE  COMMON  LAW  CLASSIFICATION,        .  8 

CHAPTER  II. 
CHATTELS  REAL, 12 

CHAPTER  III. 
MISCELLANEOUS  INTERESTS, 17 

CHAPTER  IV. 
CORPOREAL  AND  INCORPOREAL  INTERESTS,         .        .        22 


Vi  CONTENTS. 

BOOK  II. 

OWNERSHIP  OF  REAL  PROPERTY. 

'A.    LEGAL  OWNERSHIP. 
1.    THE  FEUDAL  SYSTEM. 

CHAPTER  I. 
ABSOLUTE  OWNERSHIP  AND  TENURE,        ...        38 

CHAPTER   II. 
FEUDAL  TENURE — 

(a)    IN    GENERAL,  , 46 

(&)    DESCENT, 55 

(c)    ALIENATION, 60 

CHAPTER  III. 
MANORS, ,68 

CHAPTER  IV. 
SEISIN, 74 

II.    THE  FEUDAL  TENURES. 

CHAPTER  I. 
THE  FREEHOLD  TENURES,         .        .        .        .        .        78 

CHAPTER  II. 
INCIDENTS  OF  FEUDAL  TENURE,       ....      100 

CHAPTER   III. 
THE  DEFEUDALIZATION  OF  TENURES,        .        .        .      109 


CONTENTS.  VH 

CHAPTER  IV. 

COPYHOLD  TENURE, 121 

III.   TENURE  IN  THE  UNITED  STATES,     .  130 


B.    EQUITABLE  OWNERSHIP. 

CHAPTER  I. 

USES — 

(a)  BEFORE  THE  STATUTE,          ....      140 

(b)  THE  STATUTE  OF  USES,        .        .        .        .156 

(c)  OPERATION    OF   THE   STATUTE,          .  .  .         l6o 

CHAPTER  II. 
TRUSTS — 

(a)  THEIR   ORIGIN,  165 

(b)  NATURE   OF   THE   TRUST   ESTATE,  .  .  .169 

C.    JOINT  OWNERSHIP. 

CHAPTER  I. 
JOINT  TENANCY, 179 

CHAPTER  II. 
TENANCY  IN  COMMON,       .        .        .        .        .        .      186 

CHAPTER  III. 
PARCENARY, 192 

CHAPTER  IV. 
TENANCY  BY  ENTIRETIES, 196 


Vlll  CONTENTS. 

BOOK  III. 

ESTATES  *N  LAND. 

A.    FEUDAL  OR  COMMON  LAW  ESTATES. 

I.    ESTATES  OF  FREEHOLD. 

CHAPTER  I. 
THE  FREEHOLD, 199 

CHAPTER  II. 
ESTATES  IN  FEE  SIMPLE — 

(a)    PURE  FEE  SIMPLE, 2O4 

(&)    LIMITED   FEE   SIMPLE,  ....         211 

(c)    CREATION  OF  FEE  SIMPLE,      .  .  .  .         219 

CHAPTER  III. 

ESTATES  IN  FEE  TAIL — 

(a)    CONDITIONAL  FEE,  .  .  .  .23! 

(&)    NATURE  OF  FEE  TAIL, 238 

(c)     FEE   TAIL   IN    THE   UNITED   STATES,         .  .         250 

CHAPTER   IV. 
ESTATES  FOR  LIFE — 

(a)    CONVENTIONAL  LIFE  ESTATES,     .        .        .      2$3 
(&)   LEGAL  LIFE  ESTATES 

(1)  CURTESY, 263 

(2)  DOWER, 268 

(3)  TENANT     IN     TAIL    AFTER     POSSIBILITY, 

ETC., 278 

II.     ESTATES  NOT  OF  FREEHOLD. 

CHAPTER   I. 
ESTATES  FOR  YEARS, 281 


CONTENTS.  II 

CHAPTER   II. 

ESTATES  AT  WILL — 

(a)   PURE  TENANCIES  AT  WILL,         .        .       .      2QO 
(&)  ESTATES  FROM  YEAR  TO  YEAR,     .        .        .      2Q3 

CHAPTER   III. 
TENANCY  AT  SUFFERANCE, 


III.    CONDITIONAL  ESTATES,      .        .      300 


IV.     FUTURE  ESTATES. 

CHAPTER   I. 
PRESENT  AND  FUTURE  ESTATES,       .        .        .        .316 

CHAPTER   II. 
REVERSIONS, 321 

CHAPTER   III. 
REMAINDERS — 

(a)   VESTED  REMAINDERS, 326 

(&)  CONTINGENT  REMAINDERS,  ....  333 

(c)  CONTINGENT  USES  AND  DEVISES,          .        .  346 

(</)  RULE  IN  SHELLEY'S  CASE,   ....  350 

CHAPTER   IV. 
OTHER  FUTURE  INTERESTS — 

(a)  RIGHTS  OF  ENTRY,  .  .  .  .  .  358 
(&)  POSSIBILITIES  OF  REVERTER,  .  .  .  363 
(f)  ESCHEAT, 366 


X  CONTENTS. 

B.    STATUTORY  OR  MODERN  ESTATES. 
I.     LEGAL  ESTATES. 

CHAPTER   I. 
EXECUTORY  USES, 370 

CHAPTER   II. 
EXECUTORY  DEVISES, 376 

CHAPTER   III. 
STATUTORY  FUTURE  ESTATES, 381 

CHAPTER   IV. 
POWERS, 383 

CHAPTER   V. 
PERPETUITIES, 391 

II.    EQUITABLE  ESTATES — TRUSTS,  .        .      397 


BOOK  IV. 

RIGHTS  LESS  THAN  OWNERSHIP. 
NOTE, 401 

CHAPTER  I. 
MORTGAGES, 402 


CONTENTS.  XI 

CHAPTER  II. 
PUBLIC  RIGHTS — 

(fl)    IN    PUBLIC   LANDS   AND   WATERS,  .  .  407 

(&)    IN    PRIVATE   LANDS   AND   WATERS 

(1)  RIVERS, 408 

(2)  HIGHWAYS, 410 


BOOK    V. 

THE  CREATION  AND  TRANSFER  OF  INTERESTS 
IN   LAND. 

A.    AT  COMMON  LAW. 
4 
I.    TITLE  BY  ACT  OF  THE  PARTIES. 

CHAPTER   I. 
PURCHASE  AND  DESCENT, 412 

CHAPTER   II. 
FEOFFMENT, 416 

CHAPTER    III. 
FINE  AND  RECOVERY, 422 

CHAPTER    IV. 
GRANT  AND  ATTORNMENT, 430 

CHAPTER   V. 
RELEASE,    .  437 

CHAPTER   VI. 
SURRENDER, 442 


Xll  CONTENTS. 

CHAPTER   VII. 
DEDICATION, 446 

II.    TITLE  BY  OPERATION  OF  LAW. 

CHAPTER   I. 
DESCENT, 447 

CHAPTER   II. 
DISSEISIN,  ..........      457 

CHAPTER   III. 

ESCHEAT  AND  FORFEITURE — 

(a)    ESCHEAT, 470 

(&)    FORFEITURE   FOR    CRIME,          ....         475 
(c)     FORFEITURE   FOR   WASTE,         .  .   '        .  .         479 

(</)    FORFEITURE   FOR   BREACH    OF   CONDITION,       .         482 

CHAPTER   IV. 
MARRIAGE, 486 

CHAPTER   V. 
OCCUPANCY, 492 

CHAPTER   VI. 
CUSTOM  AND  PRESCRIPTION, 495 


B.    UNDER  MODERN  STATUTES. 
I.     VOLUNTARY  ALIENATION. 

CHAPTER   I. 
UNDER  THE  STATUTE  OF  USES,        ....      502 


CONTENTS.  Xlll 

CHAPTER   II. 
MODERN  STATUTORY  FORMS, 509 

CHAPTER   III. 
DEVISE, 513 

II.     INVOLUNTARY  ALIENATION. 

CHAPTER    I. 
IN  FAVOR  OF  CREDITORS — 

(a)    EARLY  FORMS  OF  TRANSFER,        .        .        .       525 

(£)  EXECUTION, 529 

(C~)   BANKRUPTCY, 53O 

CHAPTER   II. 
FOR  PUBLIC  PURPOSES, 532 

C.  ESTOPPEL,       ...      535 
D.  REGISTRATION,         .       .      542 


READINGS 

IN     THE 

LAW  OF  REAL  PROPERTY. 


BOOK  I. 

THE  PLACE  OF  REAL  PROPERTY  IN  THE  COM- 
MON  LAW   SYSTEM. 


CHAPTER  I. 

CLASSIFICATION   OF   PROPERTY. 

(a)   The  Natural  Classification. 

DIGBY,  HIST.  REAL  PROP.,  App.,  §  I.  The  rights  and  their 
corresponding  duties  which  form  the  matter  of  English  pri- 
vate law  are  first  to  be  divided  into  two  great  classes,  differ- 
ing from  each  other  in  respect  of  the  persons  on  whom  the 
duties,  which  correlate  to  the  right,  are  incumbent.  A  per- 
son may  have  a  right  the  essence  of  which  consists  in  the 
fact  that  all  other  persons  whatsoever  are  under  a  duty  cor- 
responding to  the  right ;  or  he  may  have  a  right  the  essence 
of  which  consists  in  the  fact  that  the  corresponding  duty  is 
incumbent  on  some  one  or  more  determinate  person  or  per- 
sons. An  example  of  the  first  class  of  rights  is  the  right  of 
property  which  a  person  has  in  or  over  a  piece  of  land  or  a 
herd  of  cattle.  All  other  persons  whatsoever  are  bound  to 
abstain  from  acts  injurious  to  his  power  of  dealing  as  he 


2      READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

pleases  with  his  own.  In  other  words,  he  may  enjoy,  use, 
and,  if  he  pleases,  if  the  thing  is  perishable,  use  up,  the  thing 
which  is  the  subject  of  the  right,  subject  only  to  certain 
general  limitations,  and  also  to  certain  special  limitations 
prevailing  in  particular  cases,  where  his  rights  are  limited 
by  conflicting  rights  possessed  by  other  persons  over  the 
same  subject.  Rights  of  this  class  have  received  the  name 
of  rights  in  rem,  an  expression  which  means,  not  rights  over 
things,  but  rights  available  against  all  the  world,  i.e.,  where 
a  duty  is  incumbent  on  all  persons  whatsoever  to  abstain 
from  acts  injurious  to  the  right. 

Opposed  to  rights  in  rem,  or  rights  available  against  all 
the  world,  is  the  other  great  class  of  rights,  namely,  rights 
which  are  available  only  against  some  particular  or  determi- 
nate person  or  persons.  These  are  called  rights  in  personam, 
which  is  an  abridged  expression  for  rights  in  personam  cer- 
ium or  determinatam.  The  principal,  though  not  in  our 
law  the  only,  sources  of  these  rights  are  contracts  and  in- 
juries. When  one  person  has  entered  into  a  contract  with 
another,  as,  for  instance,  when  he  is  bound  by  a  promise  to 
pay  money,  to  deliver  goods  on  a  certain  day,  not  to  carry 
on  a  trade  within  a  given  area,  a  legal  tie  is  created  as  be- 
tween these  two  parties,  the  one  has  a  right  against  the 
other,  the  one  is  under  a  duty  toward  the  other,  and  no  third 
party  or  stranger  to  the  contract  shares  either  in  the  right  or 
in  the  duty.  So  when  any  right,  whether  in  rem  or  in  per- 
sonam, is  violated,  a  new  right  in  personam  arises.  If  my 
right  of  excluding  all  persons  from  my  house  or  field  is  vio- 
lated by  a  trespasser,  a  new  right  as  against  that  individual 
trespasser  accrues  to  me,  namely,  a  right  to  adopt  the  ap- 
propriate remedy  provided  by  the  law.  So  when  a  person 
is  bound  by  contract  to  deliver  goods  on  a  future  day,  or  not 
to  carry  on  a  trade  within  a  given  area,  the  breach  of  the 
contract  gives  rise  in  each  case  to  new  and  distinct  rights, 
rights  to  pursue  the  proper  legal  remedy  against  the  wrong- 
doer. It  will  be  seen  at  once  that  rights  in  personam  com- 
prise some  of  the  most  important  branches  of  the  law,  but 


CLASSIFICATION   OF  PROPERTY.  3 

they  are  here  mentioned  only  to  be  excluded,  since  it  is 
clearly  not  under  that  head  that  the  law  relating  to  land 
will  be  found. 

The  law  dealing  with  rights  in  rcm  may  be  called — using 
the  term  "  property  "  in  a  large  sense — the  law  of  property, 
or  the  law  dealing  with  property-rights.  The  word  "  prop- 
erty "  is  used  in  so  many  senses  as  to  be  nearly  useless  for 
juristic  purposes.  One  of  its  best  known  applications  is 
where  it  is  applied  to  any  collection  of  rights  in  rem,  as 
distinct  from  rights  in  personam.  The  Roman  lawyers 
marked  the  difference  between  the  two  branches  of  law  by 
the  words  dominium  and  obligationes.  If  the  word  "  prop- 
erty "  were  not  so  ambiguous,  one  might  venture  to  suggest 
that  the  "  law  of  property,"  or  "  of  property  rights,"  should 
be  substituted  for  the  obscure  expression  rights  in  rem. 

Rights  in  rem  may  be  subdivided  into  two  great  classes 
in  respect  of  their  subjects.  By  the  subject  of  a  right  is 
meant  the  thing,  if  any,  over  which  the  right  is  exercised. 
My  house,  horse,  or  watch  is  the  subject  of  my  right  of 
property.  There  are,  however,  some  rights  in, rem  which 
cannot  properly  be  said  to  have  any  subjects,  or  to  be  exer- 
cised over  any  definite  things.  These  will  be  noticed  pres- 
ently. 

The  great  distinction  next  to  be  mentioned  between  two 
classes  of  rights  in  rem,  differing  in  respect  of  their  sub- 
jects, is  peculiar  to  English  law  and  the  systems  derived 
from  it.  In  Roman  law  and  the  systems  to  which  it  has 
given  rise  there  is  no  such  fundamental  distinction  between 
the  law  relating  to  land  and  the  law  relating  to  things 
movable,  as  to  necessitate  a  separate  treatment  for  each 
branch.  It  is  otherwise  in  English  law,  and  the  outline  of 
its  history  which  has  been  given  in  the  preceding  chapters 
will  account  for  this  characteristic  of  our  system. 

The  distinction  therefore  under  consideration  is  between 
rights  in  rem,  which  have  for  their  subject  things  real,  that 
is  to  say,  things  immovable — in  other  words,  land  and  all 
that  is  permanently  affixed  thereto ;  and  rights  in  rem,  which 


4     READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

have  for  their  subject  things  personal  or  movable.  Speak- 
ing generally,  though  not  with  entire  accuracy,  the  former 
class  of  rights  constitutes  the  matter  of  the  law  of  "  real 
property,"  the  latter  the  matter  of  the  law  of  "  personal 
property."  There  is,  however,  one  important  class  of  rights 
over  land,1  .  .  .  which  belongs  to  the  category  of  per- 
sonal property. 

There  is  further  a  miscellaneous  class  of  rights  in  rent 
which  cannot  be  said  to  be  rights  over  land,  or  indeed  to 
have  any  subjects  at  all,  but  which  possess  some  character- 
istics common  to  rights  over  land.  For  instance,  such  of 
them  as  are  descendible,  devolve  not,  as  is  the  case  with 
personal  property,  to  executors  or  administrators,  but  to 
heirs.  These  rights  therefore  are  usually  treated  along  with 
rights  over  land.  Among  the  principal  of  this  class  of 
rights  are  advowsons — advocationes,  or  the  right  of  presen- 
tation to  an  -ecclesiastical  benefice ;  and  franchises — where 
"  a  royal  privilege  or  branch  of  the  king's  prerogative  is 
subsisting  in  the  hands  of  a  subject."  For  example,  the 
rights  to  have  "  waifs,  wrecks,  estrays,  treasure-trove,  royal 
fish,  forfeitures,  and  deodands  "  are  franchises,  which  must 
rest  on  royal  grant,  or  prescription  which  presupposes  a 
grant.  To  this  class,  too,  belong  dignities,  such  as  a  peer- 
age, which  is  the  subject  of  grant  by  patent  conferring  the 
title  with  limitations  similar  to  the  limitations  in  an  ordi- 
nary conveyance  of  land.  Peerages  may  also  be  created  by 
writ  or  royal  summons  to  attend  the  house  of  peers ;  this,  if 
acted  upon,  invests*  the  person  summoned  with  a  dignity 
descendible  to  his  heirs.  Another  instance  of  the  class  of 
rights  in  question  is  found  in  offices  which  are  now  seldom 
hereditary.  An  office  tenable  for  life,  such  as  a  college  -fel- 
lowship, is  considered  a  freehold  interest.  The  class  of 
rights  under  consideration  is  by  Blackstone  and  others  in- 
cluded under  the  class  of  incorporeal  hereditaments.  .  .  . 

Rights  over  things  movable,  and  rights  which,  though  not 
over  things  movable  or  indeed  over  things  at  all,  are  yet 

1  The  reference  is  to  leasehold  interests.     See  below,  pp.  12-16. — ED. 


* 

CLASSIFICATION    OF    PROPERTY.  5 

classed  with  such  rights,  inasmuch  as  they  are  rights  in  rem, 
and,  where  they  are  descendible,  devolve  on  executors  or 
administrators  (for  example,  patent  rights,  copyrights),  lie 
beyond  the  scope  of  the  present  treatise. 

MAINE,  ANCIENT  LAW,  273-277.  The  only  natural  classi- 
fication of  the  objects  of  enjoyment,  the  only  classification 
which  corresponds  with  an  essential  difference  in  the 
subject-matter,  is  that  which  divides  them  into  Movables 
and  Immovables.  Familiar  as  is  this  classification  to 
jurisprudence,  it  was  very  slowly  developed  by  Roman 
law,  from  which  we  inherit  it,  and  was  only  finally 
adopted  by  it  in  its  latest  stage.  The  classifications  of 
ancient  law  have  sometimes  a  superficial  resemblance  to 
this.  They  occasionally  divide  property  into  categories, 
and  place  immovables  in  one  of  them ;  but  then  it  is  found 
that  they  either  class  along  with  immovables  a  number  of 
objects  which  have  no  sort  of  relation  with  them,  or  else  di- 
vorce them  from  various  rights  to  which  they  have  a  close 
affinity.  Thus,  the  Res  Mancipi  of  Roman  law  included 
not  only  land  but  slaves,  horses,  and  oxen.  Scottish  law 
ranks  with  land  a  certain  class  of  securities,  and  Hindoo 
law  associates  it  with  slaves.  English  law,  on  the  other 
hand,  parts  leases  of  land  for  years  from  other  interests  in 
the  soil,  and  joins  them  to  personalty  under  the  name  of 
chattels  real.  Moreover,  the  classifications  of  ancient  law 
are  classifications  implying  superiority  and  inferiority ;  while 
the  distinction  between  movables  and  immovables,  so  long 
at  least  as  it  was  confined  to  Roman  jurisprudence,  carried 
with  it  no  suggestion  whatever  of  a  difference  in  dignity. 
The  Res  Mancipi,  however,  did  certainly  at  first  enjoy  a 
precedence  over  the  Res  Nee  Mancipi,  as  did  heritable  prop- 
erty in  Scotland,  and  realty  in  England,  over  the  personalty 
to  which  they  were  opposed.  The  lawyers  of  all  systems, 
have  spared  no  pains  in  striving  to  refer  these  classifications 
to  some  intelligible  principle ;  but  the  reasons  of  the  sever- 
ance must  ever  be  vainly  sought  for  in  the  philosophy  of 


6     READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

law ;  they  belong  not  to  its  philosophy,  but  to  its  history. 
The  explanation  which  appears  to  cover  the  greatest  num- 
ber of  instances  is,  that  the  objects  of  enjoyment  honored 
above  the  rest  were  the  forms  of  property  known  first  and 
earliest  to  each  particular  community,  and  dignified  there- 
fore emphatically  with  the  designation  of  property.  On  the 
other  hand,  the  articles  not  enumerated  among  the  favored 
objects  seem  to  have  been  placed  on  a  lower  standing,  be- 
cause the  knowledge  of  their  value  was  posterior  to  the 
epoch  at  which  the  catalogue  of  superior  property  was  set- 
tled. They  were  at  first  unknown,  rare,  limited  in  their 
uses,  or  else  regarded  as  mere  appendages  to  the  privileged 
objects.  Thus,  though  the  Roman  Res  Mancipi  included 
a  number  of  movable  articles  of  great  value,  still  the  most 
costly  jewels  were  never  allowed  to  take  rank  as  Res  Man- 
cipi, because  they  were  unknown  to  the  early  Romans.  In 
the  same  way  chattels  real  in  England  are  said  to  have  been 
degraded  to  the  footing  of  personalty,  from  the  infrequency 
and  valuelessness  of  such  estates  under  the  feudal  land-law. 
But  the  grand  point  of  interest  is  the  continued  degradation 
of  these  commodities  when  their  importance  had  increased 
and  their  number  had  multiplied.  Why  were  they  not  suc- 
cessively included  among  the  favored  objects  of  enjoyment? 
One  reason  is  found  in  the  stubbornness  with  which  ancient 
law  adheres  to  its  classifications.  It  is  a  characteristic  both 
•of  uneducated  minds  and  of  early  societies,  that  they  are 
little  able  to  conceive  a  general  rule  apart  from  the  particu- 
lar applications  of  it  with  which  they  are  practically  familiar. 
They  cannot  dissociate  a  general  term  or  maxim  from  the 
special  examples  which  meet  them  in  daily  experience ;  and 
in  this  way  the  designation  covering  the  best-known  forms 
of  property  is  denied  to  articles  which  exactly  resemble  them 
in  being  objects  of  enjoyment  and  subjects  of  right.  But 
to  these  influences,  which  exert  peculiar  force  in  a  subject- 
matter  so  stable  as  that  of  law,  are  afterward  added  others 
more  consistent  with  progress  in  enlightenment  and  in  the 
conceptions  of  general  expediency.  Courts  and  lawyers  be- 


CLASSIFICATION   OF  PROPERTY.  7 

come  at  last  alive  to  the  inconvenience  of  the  embarrassing 
formalities  required  for  the  transfer,  recovery,  or  devolution 
of  the  favored  commodities,  and  grow  unwilling  to  fetter 
the  newer  descriptions  of  property  with  the  technical  tram- 
mels which  characterized  the  infancy  of  law.  Hence  arises 
a  disposition  to  keep  these  last  on  a  lower  grade  in  the 
arrangements  of  jurisprudence,  and  to  permit  their  transfer 
by  simpler  processes  than  those  which,  in  archaic  convey- 
ances, serve  as  stumbling-blocks  to  good  faith  and  stepping- 
stones  to  fraud.  We  are  perhaps  in  some  danger  of  under- 
rating the  inconveniences  of  the  ancient  modes  of  transfer. 
Our  instruments  of  conveyance  are  written,  so  that  their 
language,  well  pondered  by  the  professional  draftsman,  is 
rarely  defective  in  accuracy.  But  an  ancient  conveyance 
was  not  written,  but  acted.  Gestures  and  words  took  the 
place  of  written  technical  phraseology,  and  any  formula  mis- 
pronounced, or  symbolical  act  omitted,  would  have  vitiated 
the  proceeding  as  fatally  as  a  material  mistake  in  stating  the 
uses  or  setting  out  the  remainders  would,  two  hundred  years 
ago,  have  vitiated  an  English  deed.  Indeed,  the  mischiefs 
of  the  archaic  ceremonial  are  even  thus  only  half  stated.  So 
long  as  elaborate  conveyances,  written  or  acted,  are  required 
for  the  alienation  of  land  alone,  the  chances  of  mistake  are 
not  considerable  in  the  transfer  of  a  description  of  property 
which  is  seldom  got  rid  of  with  much  precipitation.  But  the 
higher  class  of  property  in  the  ancient  world  comprised  not 
only  land,  but  several  of  the  commonest  and  several  of  the 
most  valuable  movables.  When  once  the  wheels  of  society 
had  begun  to  move  quickly,  there  must  have  been  immense 
inconvenience  in  demanding  a  highly  intricate  form  of  trans- 
fer for  a  horse  or  an  ox,  or  for  the  most  costly  chattel  of  the 
Old  World — the  Slave.  Such  commodities  must  have  been 
constantly  and  even  ordinarily  conveyed  with  incomplete 
forms,  and  held,  therefore,  under  imperfect  titles. 

ID.,  282-284.  As  I  before  explained,  the  allodial  form  of 
property  was  entirely  lost  in  the  feudal,  and  when  the  consoli- 
dation of  feudalism  was  once  completed,  there  was  practically 


8     READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

but  one  distinction  left  standing  of  all  those  which  had  been 
known  to  the  western  world — the  distinction  between  land 
and  goods,  immovables  and  movables.  Externally  this  dis- 
tinction was  the  same  with  that  which  Roman  law  had 
finally  accepted,  but  the  law  of  the  middle  ages  differed  from 
that  of  Rome  in  distinctly  considering  immovable  property 
to  be  more  dignified  than  movable.  Yet  this  one  sample  is 
enough  to  show  the  importance  of  the  class  of  expedients 
to  which  it  belongs.  In  all  the  countries  governed  by  sys- 
tems based  on  the  French  codes,  that  is,  through  much  the 
greatest  part,  of  the  Continent  of  Europe,  the  law  of  mova- 
bles, which  was  always  Roman  law,  has  superseded  and 
annulled  the  feudal  law  of  land.  England  is  the  only  coun- 
try of  importance  in  which  this  transmutation,  though  it  has 
gone  some  way,  is  not  nearly  accomplished.  Our  own,  too, 
it  may  be  added,  is  the  only  considerable  European  country 
in  which  the  separation  of  movables  from  immovables  has 
been  somewhat  disturbed  by  the  same  influences  which 
caused  the  ancient  classifications  to  depart  from  the  only 
one  which  is  countenanced  by  nature.  In  the  main,  the  Eng- 
lish distinction  has  been  between  land  and  goods ;  but  a  cer- 
tain  class  of  goods  jiave  gone  as  heirlooms  with  the  land, 
and  a^certain~description  of  interests  in  land  have  from  his- 
torical causes  been  ranked  with  personalty.  This  is  not  the 
only  instance  in  which  English  jurisprudence,  standing 
apart  from  the  main  current  of  legal  modification,  has  re- 
produced phenomena  of  archaic  law. 

(&)   The  Common  Law  Classification. 

BRACTON,  101,  102.  It  has  been  said  above  what  is  an  ac- 
tion and  in  what  ways  it  arises  out  of  obligations :  now  we 
must  see  in  what  way  it  is  divided.  And  it  is  to  be  known 
that  of  all  actions  or  pleas  (to  use  these  terms  as  equivalent) 
this  is  the  first  division,  that  some  are  real  and  others  per- 
sonal, and  some  are  mixed.  .  ..  . 

But  actions  for  a  thing  are  those  which  are  allowed  against 


CLASSIFICATION  OF  PROPERTY.  9 

a  possessor  of  it  who  possesses  it  in  his  own  name  from 
whatever  cause,  and  not  in  the  name  of  another  person  be- 
cause he  has  the  thing  or  possesses  it,  so  that  he  may  restore 
it  or  name  the  person  who  has  control  over  it,  as  if  any  one 
claims  from  another  a  certain  thing,  some  estate  or  land, 
and  contends  that  he  has  the  right  over  it,  and  therefore  is 
the  owner,  and  he  sues  for  that  thing,  and  not  its  price,  nor 
its  value,  nor  an  equivalent  of  the  same  kind,  and  so  it  is 
a  corporeal  immovable  thing,  which  is  claimed  for  whatever 
cause  from  some  one,  who  is  not  bound  by  any  personal 
right.  .  .  . 

We  have  discussed  above  if  the  thing  be  immovable  which 
is  claimed,  now  when  the  thing  claimed  is  movable,  as  a  lion, 
an  ox,  or  an  ass,  a  robe,  or  anything  else  which  consists  in 
weight  or  in  measure.  It  appears  on  first  glance  that  the 
action  or  plea  ought  to  be  for  the  thing,  as  well  as  against 
the  person,  on  the  ground  that  a  certain  thing  is  claimed, 
and  that  the  holder  of  it  is  bound  to  restore  the  thing 
claimed,  but  in  truth  [the  action]  will  be  against  the  person 
only,  because  he  from  whom  the  thing  is  claimed  is  not 
bound  precisely  to  restore  the  thing  itself,  but  disjunctively 
either  the  thing  itself  or  its  price,  and  upon  paying  the  price 
he  is  released,  whether  the  thing  itself  appears  or  not.  And 
therefore  if  anybody  claims  a  movable,  from  whatever  cause 
it  may  have  been  carried  off  or  lent,  he  ought  in  his  action 
to  define  the  price,  and  so  to  state  his  action :  I,  so  and  so, 
sue  that  so  and  so  restore  to  me  such  a  thing  of  such  a  price ; 
or,  I  complain  that  so  and  so  unjustly  detains  from  me  or 
has  robbed  me  of  such  a  thing  of  such  a  price,  otherwise 
the  claim  for  a  movable  will  not  avail  if  the  price  of  it  be 
not  stated.  The  same  thing  will  happen  if  movable  things 
are  claimed  which  consist  in  weight,  or  number,  or  measure, 
like  bullion  or  money  or  barley,  or  things  which  consist  of 
liquid,  as  wine  or  oil,  in  which  case,  if  things  of  such  sort 
are  claimed,  it  will  be  sufficient  if  the  defendant  restores  so 
much  as  is  of  the  same  weight  or  number  or  kind  or  meas- 
ure, and  hence,  because  he  is  not  compelled  to  restore  pre- 


TO    READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

cisely  the  thing  itself  which  is  claimed,  there  will  be  an 
action  against  the  person,  since  the  defendant  may  be  re- 
leased by  payment  of  an  equivalent. 

WILLIAMS,  REAL  PROP.  (i7th  ed.),  23.  The  terms  real 
and  personal  were  first  applied  to  actions;  and  were  after- 
ward extended  to  things  and  property  with  the  meanings 
which  they  had  acquired  in  connection  with  actions.  Ac- 
tions in  English  law  were  classified  as  being  either  real, 
personal,  or  mixed.  The  term  real  action  is  simply  a 
translation  of  the  expression  actio  realis  used  by  early 
writers  on  English  law  as  equivalent  to  the  term  actio  in 
rem,  which  Bracton  borrowed  from  Roman  law.  Real  ac- 
tions in  English  law  were  those  in  which  a  man  sought  to 
be  restored  to  the  enjoyment  of  some  free  tenement  of  which 
he  had  been  unjustly  deprived.  The  mark  of  a  real  action 
was  that  therein  the  required  restitution  might  be  enforced 
by  the  strong  hand  of  the  law  dealing  directly  with  the  very 
thing  claimed;  in  other  words,  process  of  execution  might 
issue  against  the  thing  demanded  (in  rem').  The  success- 
ful litigant  in  a  real  action  could  have  the  King's  writ  com- 
manding the  sheriff  to  put  him  in  possession  of  the  identical 
holding  in  respect  of  which  the  action  had  been  brought. 
Personal  actions  were  brought  to  enforce  an  obligation  im- 
posed on  a  man  personally  to  make  satisfaction  for  a  breach 
of  contract  or  a  wrong;  in  other  words,  they  were  brought 
to  obtain  pecuniary  compensation  for  a  violation  of  right — 
what  the  English  law  calls  damages.  Mixed  actions  were 
those  in  which  a  claim  for  damages  was  made  along  with  a 
claim  for  the  specific  recovery  of  some  tenement.  Now  it 
was  established  in  Bracton's  time  that  specific  restitution 
could  only  be  obtained  in  actions  for  the  recovery  of  im- 
movable things,  or  tenements.  In  actions  for  the  recovery  of 
movable  things,  the  defendant  might  always  absolve  him- 
self by  payment  of  their  value  in  money,  if  the  things  them- 
selves were  not  forthcoming.  Actions  for  the  recovery  of 
movable  things  were  accordingly  numbered  among  per- 


CLASSIFICATION  OF  PROPERTY.  II 

sonal  actions ;  for  damages  only  could  be  recovered  with  any 
certainty  therein.     Real  actions  then  being-  for  the  specific 
recovery  of  lands  or  tenements,  and  personal  actions  for  the 
recovery  of  damages,  actions  were  said  to  be  or  to  sound  in 
the  realty  or  in  the  personalty,  according  as  the  relief  af- 
forded therein  were  the  specific  recovery  of  some  thing  by 
process  of  execution  issuing  against  the  very  thing  de- 
manded, or  the  recovery  of  damages  against  the  person  of  a 
wrongdoer.    The  word  realty  was  also  used  to  denote  things! 
recoverable  in  the  realty,  or  specifically;  that  is,  lands  and   I 
tenements.    Such  things  were  also  called  things  real.  Things  I 
recoverable  in  the  personalty,  or  by    action    and    process  / 
against  the  person  who  wrongfully  withheld  them,  as  mov-  I 
able  goods,  debts,  damages,  and    the    like,  were    termed/ 
things  personal. 


CHAPTER  II. 
I 

CHATTELS    REAL. 

BRACTON,  27.  If,  moreover,  a  gift  be  made  for  a  term  of 
years,  though  of  exceeding  length — longer  than  the  life  of 
man — nevertheless  this  will  not  give  the  donee  a  freehold, 
since  a  term  of  years  is  fixed  and  ascertained,  and  the  limit 
of  life  is  uncertain,  and  because,  although  nothing  is  more 
certain  than  death,  nothing  is  more  uncertain  than  the  time 
of  death. 

ID.,  220.  I  must  now  speak  of  the  case  of  a  person 
being  ejected  from  the  use  and  occupation  of  any  tene- 
ment which  he  holds  for  a  term  of  years  before  the  ex- 
piration of  his  term.  For  in  one  and  the  same  tene- 
ment one  man  may  have  a  freehold  and  another  use  and 
occupation.  The  usual  remedy  open  to  such  lessees,  when 
they  are  ejected  before  the  expiration  of  their  term,  is  by 
action  of  covenant.  But  inasmuch  as  this  action  was  not 
available,  except  as  between  lessor  and  lessee,  and  third  per- 
sons could  not  be  bound  by  the  covenant,  and  even  as  between 
lessor  and  lessee  it  was  an  insufficient  and  inconvenient 
mode  of  determining  the  matter,  by  the  advice  of  the  Curia 
Regis  a  remedy  was  provided  which  the  farmer  could  avail 
himself  of  as  against  any  person  whatsoever  who  should 
turn  him  out  of  possession.  This  was  by  means  of  the  fol- 
lowing writ :  "  The  king  to  the  sheriff,  greeting.  Command 
A.  that  he  duly  and  without  delay  do  restore  to  B.  so  much 
land  with  the  appurtenances  in  such  a  township,  from  which 
the  said  A.,  who  demised  the  land  to  B.  (has  wrongfully 
ejected  him,  etc.)."  Or  thus:  "  If  A.  gives  proper  security, 
summon  B.  to  show  cause  why  he  ejects  and  keeps  ejected 
A.  from  so  much  land  with  the  appurtenances  which  C. 


CHATTELS  REAL.  13 

demised  to  A.  for  a  term  which  is  not  yet  passed,  and  within 
the  said  term  the  said  C.  sold  the  land  to  B.,  by  reason  of 
which  sale  the  said  B.  afterward  ejected  A.  from  the  said 
land,  as  he  saith,  etc."  And  if  such  a  writ  is  available 
against  a  stranger  on  account  of  a  sale  to  him,  much  more 
is  it  available  against  the  lord  himself  who  demised  to,  and 
without  reason  ejected,  the  lessee,  than  against  a  stranger 
who  had  some  sort  of  excuse,  if  at  the  time  of  the  sale  made 
to  him  his  vendor  ejected  the  farmer,  or  if  on  any  other 
ground  any  one  other  than  the  original  lessor  has  ejected 
the  lessee.  In  that  case  the  writ  speaks  of  "  the  land  which 
C.  of  N  demised  for  a  term  which  has  not  yet  expired,  within 
which  term  the  aforesaid  A.  or  C.  wrongfully  ejected  B. 
from  the  said  land,  as  he  alleges,  etc." 

DIGBY,  HIST.  REAL  PROP.,  Ch.  III.,  §  17.  Terms  of  Years. 
— The  characteristic  of  this  class  of  interests  in  land  is  that 
the  estate  is  sure  to  come  to  an  end  on  the  lapse  of  some 
specified  time,  however  remote  that  time  may  be.  The  pas- 
sage is  very  remarkable,  as  noting  the  precise  point  at  which 
terms1  of  years  came  to  be  recognized  as  estates  in  land.  Be- 
fore the  change  here  mentioned  the  termor  or  lessee  had 
no  interest  which  the  law  would  protect  against  third  per- 
sons, nor  indeed  against  the  lessor,  unless  the  interest  in  the 
lands  rested  on  a  conventio,  or  covenant  by  deed.  It  had 
been  the  practice  from  very  early  times  to  grant  leases  by 
deed,  and  in  such  a  case,  if  the  lessor  wrongfully  ejected 
the  lessee,  the  lessee  had  his  remedy  by  action  on  the  cov- 
enant (per  breve  de  conventione*) ,  as  in  the  case  of  any  other 
covenant  under  seal.  The  new  writ  which  was  introduced, 
as  stated  in  this  passage,  afforded  the  lessee  a  remedy 
against  his  lord,  whether  the  lease  was  by  deed  or  not ;  and 
also  gave  him  a  right  to  protection  against  ejectment  by 
a  third  person,  and  probably  an  additional  remedy,  by  en- 

1  It  should  be  observed  that  by  the  word  "term  "  is  meant  not  only 
the  period  during  which  the  interest  lasts,  but  trie  interest  or  estate 
itself. 


14    READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

abling  the  lessee  to  recover  possession  of  the  land,  and  not 
merely  damages  for  breach  of  covenant.  This  was  called 
the  writ  of  quare  ejecit  infra  terminum. 

Thus  the  interest  of  the  termor  or  lessee  for  years,  instead 
of  resting  at  best  upon  a  covenant  with  his  lessor,  and  there- 
fore being  enforceable  only  as  against  him,  became  a  right 
of  property  which  could  be  enforced  against  any  wrongdoer 
by  a  remedy  analogous  to  that  provided  for  a  wrongful 
ouster  of  a  freeholder  from  his  possession.  Thus  these  in- 
terests became  estates  or  rights  of  property  in  land.  There 
was,  however,  an  important  difference  in  the  devolution  of 
the  estate  on  the  death  of  the  lessee.  Under  the  earlier  law, 
the  persons  who,  upon  the  death  of  the  lessee  within  the 
term,  would  have  been  entitled  to  the  benefit  of  the  covenant, 
were  the  executors  or  administrators  of  the  deceased,  and, 
therefore,  it  was  natural  that  this  new  estate  or  interest 
should  descend  not  to  the  heir-at-law,  but  to  the  personal 
representatives,  the  executors,  or  administrators  of  the  les- 
see. Thus,  freehold  interests  came  to  be  classed  with  per- 
sonal and  not  with  real  property. 

LIT.,  §  740.  But  where  such  lease  or  grant  is  made  to  a 
man  and  to  his  heires  for  terme  of  yeares,  in  this  case  the 
heire  of  the  lessee  or  the  grantee  shall  not  after  the  death  of 
the  lessee  or  the  grantee  have  that  which  is  so  let  or  granted, 
because  it  is  a  chattell  reall,  and  chattels  realls  by  the  common 
law  shall  come  to  the  executors  of  the  grantee,  or  of  the 
lessee,  and  not  to  the  heire. 

Co.,  LIT.,  388,  a.  Here  is  a  generall  rule,  that  chattels  reals 
as  well  as  chattels  personals  shall  goe  to  the  executors  or 
administrators  of  the  lessee,  and  not  to  his  heires.  For  as 
estates  of  inheritance  or  freehold  descendible  shall  go  to  the 
heire,  so  chattels,  aswell  reall  as  personall,  shall  goe  to  the 
executors  or  administrators. 

2  BL.  COM.,  385-388.  But  things  personal,  by  our  law, 
do  not  only  include  things  movable,  but  also  something 


CHATTELS  REAL.  15 

more:  the  whole  of  which  is  comprehended  under  the 
general  name  of  chattels,  which  Sir  Edward  Coke  says1 
is  a  French  word  signifying  goods.  The  appellation  is 
in  truth  derived  from  the  technical  Latin  word  catalla, 
which  primarily  signified  only  beasts  of  husbandry,  or 
(as  we  still  call  them)  cattle,  but  in  its  secondary  sense 
was  applied  to  all  movables  in  general.  In  the  grand  coustu- 
mier  of  Normandy  a  chattel  ,is  described  as  a  mere  movable, 
but  at  the  same  time  it  is  set  in  opposition  to  a  fief  or  feud ; 
so  that  not  only  goods,  but  whatever  was  not  a  feud,  were 
accounted  chattels.  And  it  is  in  this  latter,  more  extended, 
negative  sense,  that  our  law  adopts  it :  the  idea  of  goods,  or 
movables  only,  being  not  sufficiently  comprehensive  to  take 
in  everything  that  the  law  considers  as  a  chattel  interest. 
For  since,  as  the  commentator  on  the  coustumier  observes, 
there  are  two  requisites  to  make  a  fief  or  heritage,  duration 
as  to  time,  and  immobility  with  regard  to  place;  whatever 
wants  either  of  these  qualities  is  not,  according  to  the  Nor- 
mans, an  heritage  or  fief ;  or,  according  to  us,  is  not  a  real 
estate ;  the  consequence  of  which  in  both  laws  is  that  it  must 
be  a  personal  estate  or  chattel. 

Chattels,  therefore,  are  distributed  by  the  law  into  two 
kinds ;  chattels  real  and  chattels  personal. 

i.  Chattels  real,  saith  Sir  Edward  Coke,2  are  such  as  con- 
cern or  savor  of  the  realty;  as  terms  for  years  of  land, 
wardships  in  chivalry  (while  the  military  tenures  subsisted), 
the  next  presentation  to  a  church,  estates  by  a  statute-mer- 
chant, statute-staple,  elegit,  or  the  like ;  .  .  .  And 
these  are  called  real  chattels,  as  being  interests  issuing 
out  of,  or  annexed  to,  real  estates;  of  which  they  have 
one  quality,  viz.,  immobility,  which  denominates  them 
real;  but  want  the  other — namely,  a  sufficient,  legal,  in- 
determinate duration;  and  this  want  it  is  that  constitutes 
them  chattels.  The  utmost  period  for  which  they  can 
last  is  fixed  and  determinate,  either  for  such  a  space  of  time 
certain,  or  till  such  a  particular  sum  of  money  be  raised  out 
1  i  Inst.  118.  *  i  Inst.  118. 


l6    READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

of  such  a  particular  income ;  so  that  they  are  not  equal  in 
the  eye  of  the  law  to  the  lowest  estate  of  freehold,  a  lease  for 
another's  life;  their  tenants  were  considered  upon  feodal 
principles  as  merely  bailiffs  or  farmers,  and  the  tenant  of 
the  freehold  might  at  any  time  have  destroyed  their  interest, 
till  the  reign  of  Henry  VIII.  .  .  „ 

2.  Chattels  personal  are,  properly  and  strictly  speaking, 
things  movable;  which  may  be  annexed  to  or  attendant  on 
the  person  of  the  owner,  and  carried  about  with  him  from 
one  part  of  the  world  to  another.  Such  are  animals,  house- 
hold stuff,  money,  jewels,  corn,  garments,  and  everything 
else  that  can  properly  be  put  in  motion  and  transferred  from 
place  to  place.  And  of  this  kind  of  chattels  it  is  that  we  are 
principally  to  speak  in  the  remainder  of  this  book;  having 
been  unavoidably  led  to  consider  the  nature  of  chattels  real, 
and  their  incidents,  in  the  former  chapters,  which  were  em- 
ployed upon  real  estates ;  that  kind  of  property  being  of  a 
mongrel  amphibious  nature,  originally  endowed  with  one 
only  of  the  characteristics  of  each  species  of  things ;  the  im- 
mobility of  things  real,  and  the  precarious  duration  of  things 
personal. 


CHAPTER   III. 

MISCELLANEOUS   INTERESTS. 

Co.  LIT.,  18,  b.  And  note,  that  in  some  places  chattels  as 
heire-loomes  (as  the  best  bed,  table,  pot,  pan,  cart,  and  other 
dead  chattels  moveable )  may  go  to  the  heire,  and  the  heire  in 
that  case  may  have  an  action  for  them  at  the  common  law, 
and  shall  not  sue  for  them  in  the  ecclesiasticall  court;  but 
the  heire-loome  is  due  by  custome  and  not  by  the  common 
law.  And  the  ancient  jewels  of  the  crowne  are  heire-loomes, 
and  shall  descend  to  the  next  successor,  and  are  not  devisable 
by  testament.  An  heire-loome  is  called  principalium  or 
haereditarium. 

SULLIVAN,  LAND  TITLES  (Mass.  1801),  71.  There  may 
yet  be  a  question  as  to  what  shall,  in  this  country,  be  con- 
sidered as  real,  and  what  shall  be  deemed  personal  estate. 

Mortgages,  while  the  equity  of  redemption  remains  as  not 
being  foreclosed,  are  chattels,  and  go  to  the  executor,  as  they 
do  in  England.  Pews  in  churches  and  places  of  public  wor- 
ship have  been  considered  variously  in  the  settlement  of 
estates  in  different  counties ;  but  by  a  late  act  of  the  Legis- 
lature they  are  settled  as  real  estate.  A  subsequent  act, 
however,  has  provided  that  pews  and  privileges  in  houses  of 
public  worship,  in  Boston  shall  be  considered  as  personal 
estate. 

i  OHIO  ST.  REP.,  350.  The  Ohio  &  Pennsylvania  Rail- 
road Co.  was  incorporated  February  24,  1848.  46  Ohio 
Local  Laws,  261.  The  fifth  section  of  its  charter  provides 
that  the  company  "  shall  have  all  the  powers  and  privileges, 
and  be  subject  to  all  the  restrictions  and  provisions  of  the 
act  regulating  railroad  companies,"  passed  February  n, 


l8    READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

1848.  46  Ohio  Laws,  40.  The  third  section  of  this  latter  act 
declares  that  the  shares  of  stock  in  the  companies  that  may  be 
subject  to  its  provisions  "  shall  be  regarded  as  personal  prop-, 
erty,  and  shall  be  subject  to  execution  at  law."  It  is  therefore 
manifest,  that  the  petitioner  is  not  entitled  to  dower  in 
the  ten  shares  of  the  stock  of  the  Ohio  &  Pennsylvania  Rail- 
road Co.,  for  they  are  clearly  personalty.  But  the  question 
in  respect  to  the  stock  in  the  Mansfield  &  Sandusky  City 
Railroad  Co.  is  not  so  easily  disposed  of.  For  that  company 
is  not,  so  far  as  the  case  shows,  subject  to  the  provisions  of 
said  act  of  February  n,  1848.  It  was  previously  chartered 
and  organized,  and  that  act  does  not  interfere  with  com- 
panies created  before  its  passage.  Turning  then  to  the  char- 
ter of  the  company,  we  find  in  it  no  provision  declaring 
whether  its  stock  is  realty  or  personalty.  We  are  thus 
brought  to  the  general  question,  whether  railroad  shares  in 
Ohio  are,  in  the  absence  of  express  legislative  enactment, 
to  be  considered  as  real  or  personal  estate.  This  question 
must  be  determined  by  a  reference  to  the  principles  of  the 
common  law,  and  the  general  statutes  of  the  State,  that 
have  a  bearing  upon  it.  And  its  solution  is  not  without 
difficulty ;  for  as  to  the  common  law  the  adjudicated  cases 
are  directly  conflicting,  and  when  we  resort  to  our  stat- 
utes, the  chief  aid  we  derive  is  from  analogies  and  infer- 
ence. .  .  . 

By  a  statute  of  10  Anne,  the  mayor,  aldermen,  and  com- 
mon council  of  the  city  of  Bath,  their  successors  or  assigns, 
or  such  persons  as  they  should  appoint,  were  authorized  to 
improve  the  navigation  of  the  river  Avon,  and  to  charge  tolls 
on  persons  and  property  transported  thereon.  .  .  . 

In  Buckeridge  v.  Ingram,  decided  in  1795,  2  Ves.  Jr.,  651, 
the  question  was  directly  made,  whether  these  shares  were 
personal  or  real  estate,  and  it  was  decided  that  they  were 
real  estate  and  subject  to  dower.  The  master  of  the  rolls  held 
that  the  right  to  take  the  tolls  was  an  incorporeal  heredita- 
ment arising  out  of  realty  and  was  therefore  a  "  tenement." 
And  he  remarked :  "I  have  no  difficulty  in  saying,  that 


MISCELLANEOUS    INTERESTS.  19 

wherever  a  perpetual  inheritance  is  granted,  which  arises 
out  of  lands,  or  is  in  any  way  connected  with,  or,  as  it  is 
emphatically  expressed  by  Lord  Coke,  exercisable  within  it, 
it  is  that  sort  of  property  the  law  denominates  real." 

The  principle  of  these  cases  was  followed,  and  possibly 
extended,  by  the  Supreme  Court  of  Connecticut,  in  1818,  in 
the  case  of  Welles  v.  Cowles,  2  Conn.  567,  in  which  it  was 
held  that  shares  of  an  incorporated  turnpike  company  are 
real  estate.  The  right  to  the  tolls,  said  the  court,  "  is  a  right 
issuing  out  of  real  property,  annexed  to  and  exercisable 
within  it  and  comes  within  the  description  of  an  incorporeal 
hereditament  of  a  real  nature,  on  the  same  principle  as  a 
share  in  the  New  River,  in  canal  navigations,  and  tolls  of 
fairs  and  markets ; "  citing  Drybutter  v.  Bartholomew,  2 
Peere  Williams,  127 ;  Habergham  v.  Vincent,  2  Ves.  Jr.  232,. 
and  The  King  v.  The  Inhabitants  of  Chipping  Norton,  5 
East,  239.  .  .  . 

In  1835  the  Supreme  Court  of  Pennsylvania  held  that  "  a 
toll-bridge  erected  by  two  individuals  across  a  river  between 
their  lands,  by  legislative  authority,  is  real  estate."  The 
court  said  that  the  right  was  "  not  only  a  right  arising  out 
of  the  soil,  but  so  far  as  the  abutments  of  the  bridge  are  con- 
cerned, it  is  the  soil  itself.".  Hurst  v.  Meason,  4  Watts,  346. 
It  is  to  be  observed,  however,  that  it  does  not  appear  that 
the  builders  were  incorporated. 

In  Price  v.  Price's  Heirs,  6  Dana,  107,  the  Court  of  Ap- 
peals of  Kentucky,  in  1838,  held  that  the  stock  in  the  Lex- 
ington &  Ohio  Railroad  Co.  is  real  estate.  Without  citing- 
any  adjudicated  case,  the  court  came  to  a  conclusion  which 
is  thus  expressed :  "  The  right  conferred  on  each  share- 
holder is  unquestionably  an  incorporeal  hereditament.  It  is 
a  right  of  perpetual  duration ;  and  though  it  springs  out  of 
the  use  of  personalty,  as  well  as  lands  and  houses,  this  mat- 
ters not.  It  is  a  franchise  which  has  ever  been  classed  in 
that  class  of  real  estate  denominated  an  incorporeal  heredita- 
ment." 

On  the  other  hand,  the  Supreme  Court  of  Massachusetts, 


2O    READINGS  IN  THE  LAW  OF  REAL  PROPERTY.   - 

in  1798,  in  Russell  et  al.  v.  Temple  et  al.,  3  Dana's  Abr. 
1 08,  held  that  shares  in  incorporated  bridge  and  canal  com- 
panies are  personalty.  The  case  was  between  the  widow 
and  heirs  of  Thomas  Russell,  the  former  contending  that 
the  shares  were  personal  property,  and  that  consequently 
she  was  entitled  to  a  distributive  portion  of  them,  and  the 
latter  insisting  that  they  were  realty,  and  that  therefore  she 
had  but  a  dower  estate.  The 'question  was  very  fully  dis- 
cussed and  was  decided  (says  Professor  Greenleaf  in  his 
edition  of  Cruise)  "upon  great  consideration."  .  .  . 

In  his  edition  of  Cruise,  Greenleaf  says :  "  Shares  in  the 
property  of  a  corporation  are  real  or  personal  property,  ac- 
cording to  the  nature,  object  and  manner  of  the  investment. 
Where  the  corporate  powers  are  to  be  exercised  solely  in 
land,  as  where  original  authority  is  given  by  the  charter  to 
remove  obstructions  in  a  river  and,  render  it  navigable,  to 
open  new  channels,  etc.,  to  make  a  canal,  erect  water- works, 
and  the  like,  as  was  the  case  of  the  New  River  water,  the 
navigation  of  the  river  Avon  and  some  others,  and  the  prop- 
erty or  interest  in  the  land,  though  it  be  an  incorporeal 
hereditament,  is  vested  inalienably  in  the  corporators  them- 
selves, the  shares  are  deemed  real  estate.  Such,  in  some 
of  the  United  States,  has  been  considered  the  nature  of 
shales  in  toll-bridge,  canal,  and  turnpike  corporations  by 
the  common  law ;  though  latterly  it  has  been  thought  that 
railway  shares  were  more  properly  to  be  regarded  as  per- 
sonal estate.  But  where  the  property  originally  entrusted 
is  money,  to  be  made  profitable  to  the  contributors  by  apply- 
ing it  to  certain  purposes,  in  the  course  of  which  it  may  be 
'invested  in  lands  or  in  personal  property,  and  changed  at 
pleasure,  the  capital  fund  is  vested  in  the  corporation,  and 
the  shares  in  the  stock  are  deemed  personal  property,  and  as 
scch  are  in  all  respects  treated ;  in  modern  practice,  how- 
evfrv  shares  in  corporate  stock,  of  whatever  nature,  are 
usually  declared  by  statute  to  be  personal  estate."  i  Green- 
leaf's  Cr.  Dig.  39,  40.  In  support  of  this  statement,  Mr. 
Greenleaf  cites  the  cases  we  have  alreadv  noticed,  and  some 


MISCELLANEOUS    INTERESTS.  21 

others  that  require  consideration.  One  of  the  most  impor- 
tant of  these  is  Bligh  v.  Brent,  2  Y.  &  C.  Exch.  Rep.  268,  294. 
It  involved  the  question  whether  the  shares  in  the  Chelsea 
Water-works  Co.  were  realty  or  personalty.  The  act  of  in- 
corporation left  the  question  open,  as  it  contained  no  declara- 
tion upon  the  subject.  The  court  reviewed  the  cases  bearing 
upon  it,  and  came  to  the  conclusion  that  the  shares  were 
personalty.  .  .  . 

A  careful  examination  of  the  adjudications  upon  the  sub- 
ject has  brought  us  to  the  conclusion  that,  according  to  the 
weight  of  authority,  the  shares  in  question  are  personal  prop- 
erty. In  the  early  English  cases  the  distinction,  now  well 
understood,  between  the  property  of  a  corporation  and  the 
rights  of  its  members,  does  not  seem  to  have  been  taken,  and 
it  appears  to  have  been  assumed  that  each  shareholder  had 
an  estate  in  the  corporate  property,  and  that,  consequently,  if 
that  property  was  real,  his  share  was  also  realty.  But  the 
cases  we  have  cited  abundantly  show  that  the  distinction 
above  mentioned  is  now  fully  recognized  in  England,  and 
that  the  property  of  a  corporation  may  be  mainly,  if  not 
wholly,  real,  and  yet  the  shares  of  its  members  be  person- 
alty. This  may,  possibly,  be  an  innovation  upon  the  ancient 
principles  of  the  common  law,  but  it  is  not  more  so  than 
has  taken  place  in  the  case  of  ordinary  partnerships.  Thus, 
the  old  doctrine  seems  to  have  been  that  there  could  be  no 
partnership,  properly  so  called,  in  land,  but  the  contrary 
doctrine  is  now  universally  held ;  and  that  a  widow  of  a  de- 
ceased partner  is  not  dowable  in  lands  which  the  firm  owned 
and  regarded  as  partnership  stock,  is  settled  by  numerous 
decisions,  among  which  are  the  cases  in  i  Ohio  Rep.  535,  and 
8  Ohio  Rep.  328.  ...  In  whatever  way  we  view  the 
case,  whether  upon  adjudication,  reason,  or  our  statute  laws, 
we  arrive  at  the  conclusion  that  the  shares  in  question  are 
personal  property. — Per  Thurman,  J.,  in  Johns  v.  Johns 
(1853). 


CHAPTER  IV. 

CORPOREAL  AND  INCORPOREAL  INTERESTS. 

BRACTON,  220.  There  are  certain  rights  which  belong 
to  a  tenement  besides  the  ownership  of  the  corporeal 
things ;  these  are  from  different  points  of  view  called  rights 
or  servitudes.  They  are  called  rights  or  franchises  in 
reference  to  the  tenements  to  which  they  appertain.  They 
are  called  servitudes  in  reference  to  the  tenements  subject 
to  the  obligation ;  and  they  always  consist  in  rights  over 
another  man's  land  and  not  over  a  man's  own  land, 
because  no  one  can  have  a  servitude  over  his  own  land, 
and  no  one  can  create  a  servitude  of  this  kind  but  he  who 
has  lands  and  tenements,  for  some  lands  are  free,  others 
subject  to  a  servitude.  Land  may  be  called  free  when  it  is 
in  no  respect  bound  or  subservient  to  the  lands  of  neighbors. 
If,  however,  it  is  so  subservient,  land  which  may  before  have 
been  free  is  said  to  be  subjected  to  a  servitude,  and  this 
whether  its  subjection  to  the  land  or  tenement  of  another 
be  by  the  will  and  grant  of  the  owners,  or  because  of  an 
ascertained  obligation,  or  because  of  vicinage.  .  .  . 

And  thus  a  servitude  is  created  over  another  man's  land, 
sometimes  by  act  of  party,  sometimes  by  acquiescence  and 
user.  And  in  the  same  way  it  is  sometimes  imposed  by  law, 
and  neither  by  act  of  party  nor  by  user,  for  instance,  that  no 
one  should  do  on  his  own  land  anything  by  which  damage 
or  harm  should  result  to  his  neighbor.  For  harm  may  be 
permitted  by  law,  or  it  may  be  wrongful.  It  is  wrongful 
when  any  one  does  any  act  on  his  own  land  wrongfully, 
contrary  to  law  or  contrary  to  a  grant,  he  being  forbidden 
by  law  to  do  the  act.  But  if  he  be  not  forbidden  by  law  to  do 


CORPOREAL  AND  INCORPOREAL  INTERESTS.      23 

the  act,  although  he  does  harm  and  causes  damage,  yet  the 
act  will  not  be  wrongful,  for  it  is  lawful  for  any  one  to  do 
upon  his  own  land  anything  which  will  not  cause  wrongful 
damage  to  his  neighbor;  as  if  any  one  erects  a  mill  on  his 
own  land,  and  diverts  from  his  neighbor  his  own  cus- 
tom and  that  of  the  neighbors,  he  thereby  does  his  neighbor 
harm  but  not  injury,  since  he  is  not  forbidden  either  by  law 
or  covenant  to  have  or  erect  a  mill.  Again,  there  are  servi- 
tudes which  are  imposed  by  law  on  neighboring  tenements, 
as,  for  instance,  that  a  man  should  not  raise  the  level  of  the 
water  in  his  pool  so  high  as  to  drown  the  land  of  his  neigh- 
bor. Another  instance  is  that  a  man  may  not  make  a  ditch 
on  his  own  ground  so  as  to  divert  his  neighbor's  water,  or 
so  as  to  prevent  it  in  whole  or  in  part  from  flowing  back 
into  its  ancient  channel. 

HALE,  ANALYSIS,  46-50.  Things  real  are  of  two  kinds : 
Corporeal,  incorporeal. 

Corporeal  things  real  are  such  as  are  manurable.  And 
they  again  are  of  two  kinds — simple,  aggregate. 

Things  corporeal  which  are  simple  are  generally  com- 
prehended under  the  name  of  lands,  which  yet  are  distrib- 
uted into  several  kinds,  according  to  their  several  qualifica- 
tions, and  accordingly  are  demandable  in  writs.  .  .  . 

Things  incorporeal  are  of  a  large  extent,  but  may  be 
reducible  into  these  two  general  kinds — namely,  things  in- 
corporeal, not  in  their  own  nature,  but  so  called  in  respect 
of  the  degree  or  circumstance  wherein  they  stand ;  as  rever- 
sions, remainders,  the  estate  of  lands.  .  .  . 

Things  incorporeal  in  their  own  nature — and  these  are  of 
very  great  variety,  and  hardly  reducible  into  general  dis- 
tributions', and  therefore  I  am  forced  to  take  them  by  tale 
— namely,  rents  reserved  or  granted,  as  rent  service,  rent 
charge,  rent  seek.  .  .  .  Services  personal  incident  to 
tenures ;  as  homage,  fealty  and  knights  service.  Advowsons 
of  all  sorts.  .  .  .  Tithes  of  all  sorts.  .  .  .  Com- 
mons of  all  sorts ;  as  common  of  estovers  and  of  pasture,  ap- 


24    READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

pendant  and  appurtenant,  for  cattle  certain  and  for  cattle 
sans  number,  separabilis  pastura.  .  .  .  All  kinds  of 
proficua  capienda  in  alieno  solo;  as  herbage,  pawnage,  etc. 
.  .  i  All  kinds  of  pensions,  proxies  (procurations),  etc. 
.  .  .  Offices  of  all  sorts.  .  .  .  Franchises  and  liberties 
of  all  sorts.  .  .  .  Villeins  :  Dignities  ;  as  dukes,  marquises, 
earls,  viscounts,  barons,  etc. ;  and  thus  far  touching  incor- 
poreal real  things  temporal. 

Their  common  incident  is  that  they  pass  not  from  one  to 
another  without  deed.  And  to  these  several  titles  may  be 
reduced  all  the  learning  of  each  particular. 

2  BL.  COM.,  16-19.  Of  Corporeal  Hereditaments. — 
.  .  .  First,  with  regard  to  their  several  sorts  or  kinds, 
things  real  are  usually  said  to  consist  in  lands,  .tenements, 
or  hereditaments.  Land  comprehends  all  things  of  a  perma- 
nent, substantial  nature,  being  a  word  of  a  very  extensive 
signification,  as  will  presently  appear  more  at  large.  Tene- 
ment is  a  word  of  still  greater  extent,  and  though  in  its  vul- 
gar acceptation  it  is  only  applied  to  houses  and  other  build- 
ings, yet  in  its  original,  proper,  and  legal  sense  it  signifies 
everything  that  may  be  holden,  provided  it  be  of  a  perma- 
nent nature ;  whether  it  be  of  a  substantial  and  sensible,  or  of 
an  unsubstantial,  ideal  kind.  Thus,  liberum  tenementum, 
frank  tenement,  or  freehold,  is  applicable  not  only  to  lands 
and  other  solid  objects,  but  also  to  offices,  rents,  commons, 
and  the  like ;  and  as  lands  and  houses  are  tenements,  so  is  an 
advowson  a  tenement ;  and  a  franchise,  an  office,  a  right  of 
common,  a  peerage,  or  other  property  of  the  like  unsubstan- 
tial kind,  are  all  of  them,  legally  speaking,  tenements.  But 
an  hereditament,  says  Sir  Edward  Coke,1  is  by  much  the 
largest  and  most  comprehensive  expression,  for  it  includes 
not  only  lands  and  tenements,  but  whatsoever  may  be  in- 
herited, be  it  corporeal  or  incorporeal,  real,  personal,  or 
mixed.  Thus,  an  heirloom  or  implement  of  furniture  which 
by  custom  descends  to  the  heir  together  with  a  house,  is 

1 1  Inst.  6. 


CORPOREAL  AND  INCORPOREAL  INTERESTS.      2$ 

neither  land  nor  tenement,  but  a  mere  movable;  yet  being 
inheritable,  is  comprised  under  the  general  word  heredita- 
ment ;  and  so  a  condition,  the  benefit  of  which  may  descend 
to  a  man  from  his  ancestor,  is  also  an  hereditament. 

Hereditaments,  then,  to  use  the  largest,  expression,  are  of 
two  kinds,  corporeal  and  incorporeal.  Corporeal  consist  of 
such  as  affect  the  senses,  such  as  may  be  seen  and  handled 
by  the  body;  incorporeal  are  not  the  object  of  sensation,  can 
neither  be  seen  nor  handled,  are  creatures  of  the  mind,  and 
exist  only  in  contemplation. 

Corporeal  hereditaments  consist  wholly  of  substantial  and 
permanent  objects;  all  which  may  be  comprehended  under 
the  general  denomination  of  land  only.  For  land,  says  Sir 
Edward  Coke,1  comprehendeth,  in  its  legal  signification,  any 
ground,  soil,  or  earth  whatsoever;  as  arable  meadows,  pas- 
tures, woods,  moors,  waters,  marshes,  furzes,  and  heath.  It 
legally  includeth  also  all  castles,  houses, and  other  buildings: 
for  they  consist,  said  he,  of  two  things :  land,  which  is  the 
foundation,  and  structure  thereupon ;  so  that  if  I  convey  the 
land  or  ground,  the  structure  or  building  passeth  therewith. 
It  is  observable  that  water  is  here  mentioned  as  a  species  of 
land,  which  may  seem  a  kind  of  solecism;  but  such  is  the 
language  of  the  law ;  and  therefore  I  cannot  bring  an  action 
to  recover  possession  of  a  pool  or  other  piece  of  water  by 
the  name  of  water  only,  either  by  calculating  its  capac- 
ity, as,  for  so  many  cubical  yards ;  or  by  superficial  measure, 
for  twenty  acres  of  water ;  or  by  general  description,  as  for 
a  pond,  a  watercourse,  or  a  rivulet;  but  I  must  bring  my 
action  for  the  land  that  lies  at  the  bottom,  and  must  call  it 
twenty  acres  of  land  covered  with  water.  For  water  is 
a  movable,  wandering  thing,  and  must  of  necessity  continue 
common  by  the  law  of  nature ;  so  that  I  can  only  have  a  tem- 
porary, transient,  usufructuary  property  therein;  wherefore, 
if  a  body  of  water  runs  out  of  my  pond  into  another  man's, 
I  have  no  right  to  reclaim  it.  But  the  land  which  that  water 
covers  is  permanent,  fixed  and  immovable ;  and  therefore  in 

1 1  Inst.  4. 


26    READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

this  I  may  have  a  certain  substantial  property,  of  which  the 
law  will  take  notice,  and  not  of  the  other. 

Land  hath  also,  in  its  legal  signification,  an  indefinite  ex- 
tent, upwards  as  well  as  downwards.  Cujus  est  solum,  ejus 
est  usque  ad  coelum,  is  the  maxim  of  the  law ;  upwards, 
therefore,  no  man  may  erect  any  building,  or  the  like,  to 
overhang  another's  land ;  and  downwards,  whatever  is  in  a 
direct  line  between  the  surface  of  any  land  and  the  centre 
of  the  earth  belongs  to  the  owner  of  the  surface,  as  is  every 
day's  experience  in  the  mining  countries.  So  that  the  word 
"  land  "  includes  not  only  the  face  of  the  earth,  but  every- 
thing under  it  or  over  it.  And,  therefore,  if  a  man  grants 
all  his  lands,  he  grants  thereby  all  his  mines  of  metal  and 
other  fossils,  his  woods,  his  waters,  and  his  houses,  as  well 
as  his  fields  and  meadows.  Not  but  the  particular  names  of 
the  things  are  equally  sufficient  to  pass  them,  except  in  the 
instance  of  water,  by  a  grant  of  which  nothing  passes  but 
a  right  of  fishing ;  but  the  capital  distinction  is  this,  that  by 
the  name  of  a  castle,  messuage,  toft,  croft,  or  the  like,  noth- 
ing else  will  pass,  except  what  falls  with  the  utmost  pro- 
priety under  the  term  made  use  of ;  but  by  the  name  of  land, 
which  is  nomen  generalissimum,  everything  terrestrial  will 
pass.1 

ID.,  20-43.  Of  Incorporeal  Hereditaments. — An  incor- 
poreal hereditament  is  a  right  issuing  out  of  a  thing  cor- 
porate (whether  real  or  personal)  or  concerning,  or  an- 
nexed to,  or  exercisable  within  the  same.  It  is  not  the 
thing  corporate  itself,  which  may  consist  in  lands,  houses, 
jewels,  or  the  like ;  but  something  collateral  thereto,  as  a 
rent  issuing  out  of  those  lands  or  houses,  or  an  office  relat- 
ing to  those  jewels.  In  short,  as  the  logicians  speak,  cor- 
poreal hereditaments  are  the  substance,  which  may  be  always 
seen,  always  handled ;  incorporeal  hereditaments  are  but 
a  sort  of  accidents,  which  inhere  in  and  are  supported  by 
that  substance ;  and  may  belong  or  not  belong  to  it,  without 
any  visible  alteration  therein.  Their  existence  is  merely  in 
•Co.  Litt.  4,  5,  6. 


CORPOREAL  AND  INCORPOREAL  INTERESTS.     2/ 

idea  and  abstracted  contemplation,  though  their  effects  and 
profits  may  be  frequently  objects  of  our  bodily  senses.  And 
indeed,  if  we  would  fix  a  clear  notion  of  an  incorporeal 
hereditament,  we  must  be  careful  not  to  confound  together 
the  profits  produced  and  the  thing  or  hereditament  which 
produces  them.  An  annuity,  for  instance,  is  an  incorporeal 
hereditament;  for  though  the  money,  which  is  the  fruit  or 
product  of  this  annuity,  is  doubtless  of  a  corporeal  nature, 
yet  the  annuity  itself,  which  produces  that  money,  is  a  thing 
invisible,  has  only  a  mental  existence,  and  cannot  be  deliv- 
ered over  from  hand  to  hand.  So  tithes,  if  we  consider  the 
produce  of  them,  as  the  tenth  sheaf  or  tenth  lamb,  seem  to  be 
completely  corporeal,  yet  they  are  indeed  incorporeal  heredit- 
aments ;  for  they,  being  merely  a  contingent  springing  right, 
collateral  to  or  issuing  out  of  lands,  can  never  be  the  object 
of  sense :  that  casual  share  of  the  annual  increase  is  not,  till 
severed,  capable  of  being  shown  to  the  eye,  nor  of  being 
delivered  into  bodily  possession. 

Incorporeal  hereditaments  are  principally  of  ten  sorts; 
advowsons,  tithes,  commons,  ways,  offices,  dignities,  fran- 
chises, corodies  or  pensions,  annuities,  and  rents. 

I.  Advowson  is  the  right  of  presentation  to  a  church  or 
ecclesiastical  benefice.  Advowson,  advocatio,  signifies  in 
clientelam  recipere,  the  taking  into  protection ;  and  therefore 
is  synonymous  with  patronage,  patronatiks ;  and  he  who 
has  the  right  oif  advowson  is  called  the  patron  of  the 
church.  .  .  . 

This  instance  of  an  advowson  will  completely  illustrate 
the  nature  of  an  incorporeal  hereditament.  It  is  not  itself  the 
bodily  possession  of  the  church  and  its  appendages,  but  it 
is  a  right  to  give  some  other  man  a  title  to  such  bodily  pos- 
session. The  advowson  is  the  object  of  neither  the  sight 
nor  the  touch,  and  yet  it  perpetually  exists  in  the  mind's  eye 
and  in  contemplation  of  law.  It  cannot  be  delivered  from 
man  to  man  by  any  visible  bodily  transfer,  nor  can  corporeal 
possession  be  had  of  it.  If  the  patron  takes  corporeal  pos- 
session of  the  church,  the  churchyard,  the  glebe,  or  the  like, 


28    READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

he  intrudes  on  another  man's  property;  for  to  these  the 
parson  has  an  exclusive  right.  The  patronage  can  therefore 
be  only  conveyed  by  operation  of  law,  by  verbal  grant,  either 
oral  or  written,  which  is  a  kind  of  invisible  mental  transfer ; 
and  being  so  vested,  it  lies  dormant  and  unnoticed  till  occa- 
sion calls  it  forth,  when  it  produces  a  visible  corporeal  fruit, 
by  entitling  some  clerk,  whom  the  patron  shall  please  to 
nominate,  to  enter  and  receive  bodily  possession  of  the  lands 
and  tenements  of  the  church.  .  .  . 

II.  A  second  species  of  incorporeal  hereditaments  is  that 
of  tithes,  which  are  defined  to  be  the  tenth  part  of  the  in- 
crease yearly  arising  and  renewing  from  the  profits  of  lands, 
the  stock  upon  lands,  and  the  personal  industry  of  the  in-" 
habitants ;  the  first  species  being  usually  called  predial,  as  of 
corn,   grass,   hops,   and   wood ;   the   second   mixed,   as   of 
wool,  milk,  pigs,  etc.,  consisting  of  natural  products,  but 
nurtured  and  preserved  in  part  by  the  care  of  man;  and  of 
these  the  tenth  must  be  paid  in  gross ;  the  third  personal, 
as  of  manual  occupations,  trades,  fisheries,  and  the  like ;  and 
of  these  only  the  tenth  part  of  the  clear  gains  and  profits  is 
due.    .    .    . 

III.  Common,  or  right  of  common,  appears  from  its  very 
definition  to  be  an  incorporeal  hereditament,  being  a  profit 
which  a  man  hath  in  the  land  of  another;  as  to  feed  his 
beasts,  to  catch  fish,  to  dig  turf,  to  cut  wood,  or  the  like. 
And  hence  common  is  chiefly  of  four  sorts ;  common  of  pas- 
ture, of  piscary,  of  turbary,  and  of  estovers. 

i.  Common  of  pasture  is  a  right  of  feeding  one's  beasts 
on  another's  land ;  for  in  those  waste  grounds,  which  are 
usually  called  commons,  the  property  of  the  soil  is  generally 
in  the  lord  of  the  manor;  as  in  common  fields  it  is  in  the 
particular  tenants.  This  kind  of  common  is  either  append- 
ant,  appurtenant,  because  of  vicinage,  or  in  gross. 

Common  appendant  is  a  right  belonging  to  the  owners  or 
occupiers  of  arable  land  to  put  commonable  beasts  upon  the 
lord's  waste  and  upon  the  lands  of  other  persons  within  the 
same  manor.  Commonable  beasts  are  either  beasts  of  the 


CORPOREAL    AND    INCORPOREAL    INTERESTS.  29 

plough  or  such  as  manure  the  ground.  This  is  a  matter  of 
most  universal  right,  and  it  was  originally  permitted  not 
only  for  the  encouragement  of  agriculture,  but  for  the  neces- 
sity of  the  thing.  .  .  .  Common  appurtenant  ariseth 
from  no  connection  of  tenure  nor  from  any  absolute  neces- 
sity, but  may  be  annexed  to  lands  in  other  lordships,  or  ex- 
tend to  other  beasts  besides  such  as  are  generally  common- 
able  ;  as  hogs,  goats,  or  the  like,  which  neither  plough  nor 
manure  the  ground.  This,  not  arising  from  any  natural  pro- 
priety or  necessity,  like  common  appendant,  is  therefore  not 
of  general  right,  but  can  only  be  claimed  by  immemorial 
usage  and  prescription,  which  the  law  esteems  sufficient  proof 
of  a  special  grant  or  agreement  for  this  purpose.  Common 
because  of  vicinage,  or  neighborhood,  is  where  the  inhabi- 
tants of  two  townships  which  lie  contiguous  to  each  other 
have  usually  intercommoned  with  one  another,  the  beasts  of 
the  one  straying  mutually  into  the  other's  fields  without  any 
molestation  from  either.  This  is  indeed  only  a  permissive 
right,  intended  to  excuse  what  in  strictness  is  a  trespass  in 
both,  and  to  prevent  a  multiplicity  of  suits ;  and  therefore 
either  township  may  enclose  and  bar  out  the  other,  though 
they  have  intercomijioned  time  out  of  mind.  Neither  hath 
any  person  of  one  town  a  right  to  put  his  beasts  originally 
into  the  others  common ;  but  if  they  escape  and  stray  thither 
of  themselves,  the  law  winks  at  the  trespass.  Common  in 
gross,  or  at  large,  is  such  as  is  neither  appendant  nor  appur- 
tenant to  land,  but  is  annexed  to  a  man's  person,  being 
granted  to  him  and  his  heirs  by  deed ;  or  it  may  be  claimed 
by  prescriptive  right,  as  by  a  parson  of  a  church  or  the  like 
corporation  sole.  This  is  a  separate  inheritance,  entirely 
distinct  from  any  landed  property,  and  may  be  vested  in  one 
who  has  not  a  foot  of  ground  in  the  manor.  .  .  . 

2,  3.  Common  of  piscary  is  a  liberty  of  fishing  in  another 
man's  water,  as  common  of  turbary  is  a  liberty  of  dig- 
ging turf  upon  another's  ground.  There  is  also  a  common  of 
digging  for  coals,  minerals,  stones,  and  the  like.  All  these 
bear  a  resemblance  to  common  of  pasture  in  many  respects ; 


3O    READINGS  IN  THE  LAW  OF,  REAL  PROPERTY. 

though  in  one  point  they  go  much  further,  common  of 
pasture  being  only  a  right  of  feeding  on  the  herbage  and 
vesture  of  the  soil,  which  renews  annually ;  but  common  of 
turbary,  and  those  aforementioned,  are  a  right  of  carrying 
away  the  very  soil  itself. 

4.  Common  of  estovers  or  estouviers,  that  is,  necessaries 
(from  estoffer,  to  furnish),  is  a  liberty  of  taking  necessary 
wood,  for  the  use  or  furniture  of  a  house  or  farm,  from  off 
another's  estate.  The  Saxon  word  bote  is  used  by  us  as 
synonymous  to  the  French  estovers;  and  therefore  house- 
bote  is  a  sufficient  allowance  of  wood  to  repair  or  to  burn 
in  the  house,  which  latter  is  sometimes  called  fire-bote ; 
plough-bote  and  cart-bote  are  wood  to  be  employed  in  mak- 
ing and  repairing  all  instruments  of  husbandry ;  and  hay- 
bote,  or  hedge-bote,  is  wood  for  repairing  of  hay,  hedges,  or 
fences.  These  botes  or  estovers  must  be  reasonable  ones; 
and  such  any  tenant  or  lessee  may  take  off  the  land  let  or 
demised  to  him  without  waiting  for  any  leave,  assignment, 
or  appointment  of  the  lessor,  unless  he  be  restrained  by 
special  covenant  to  the  contrary. 

These  several  species  of  commons  do  all  originally  result 
from  the  same  necessity  as  common  of  pasture,  viz.,  for 
the  maintenance  and  carrying  on  of  husbandry ;  common 
of  piscary  being  given  for  the  sustenance  of  the  tenant's 
family,  common  of  turbary  and  fire-bote  for  his  fuel,  and 
house-bote,  plough-bote,  cart-bote,  and  hedge-bote  for  re- 
pairing his  house,  his  instruments  of  tillage,  and  the  neces- 
sary fences  of  his  grounds. 

IV.  A  fourth  species  of  incorporeal  hereditaments  is  that 
of  ways,  or  the  right  of  going  over  another  man's  ground. 
I  speak  not  here  of  the  king's  highways  which  lead  from 
town  to  town,  nor  yet  of  common  ways  leading  from  a  vil- 
lage into  the  fields,  but  of  private  ways,  in  which  a  particu- 
lar man  may  have  an  interest  and  a  right,  though  another 
be  owner  of  the  soil.  This  may  be  granted  on  a  special 
permission,  as  when  the  owner  of  the  land  grants  to  another 
the  liberty  of  passing  over  his  grounds  to  go  to  church,  to 


CORPOREAL  AND  INCORPOREAL  INTERESTS.     3! 

market,  or  the  like,  in  which  case  the  gift  or  grant  is  par- 
ticular, and  confined  to  the  grantee  alone ;  it  dies  with  the 
person,  and  if  the  grantee  leaves  the  country,  he  cannot 
assign  over  his  right  to  any  other,  nor  can  he  justify  taking 
another  person  in  his  company.  A  way  may  be  also  by 
prescription;  as  if  all  the  inhabitants  of  such  a  hamlet,  or 
all  the  owners  and  occupiers  of  such  a  farm,  have  im- 
memorially  used  to  cross  such  a  ground  for  such  a  particular 
purpose ;  for  this  immemorial  usage  supposes  an  original 
grant,  whereby  a  right  of  way  thus  appurtenant  to  land  or 
houses  may  clearly  be  created.  A  right  of  way  may  also 
arise  by  act  and  operation  of  law ;  for  if  a  man  grants  me 
a  piece  of  ground  in  the  middle  of  his  field,  he  at  the  same 
time  tacitly  and  impliedly  gives  me  a  way  to  come  to  it,  and 
I  may  cross  his  land  for  that  purpose  without  trespass.  For 
when  the  law  doth  give  anything  to  one,  it  giveth  impliedly 
whatsoever  is  necessary  for  enjoying  the  same.  By  the  law 
of  the  twelve  tables  at  Rome,  where  a  man  had  the  right  of 
way  over  another's  land,  and  the  road  was  out  of  repair,  he 
who  had  the  right  of  way  might  go  over  any  part  of  the 
land  he  pleased,  which  was  the  established  rule  in  public,  as 
well  as  private  ways.  And  the  law  of  England,  in  both 
cases,  seems  to  correspond  with  the  Roman. 

V.  Offices,  which  are  a  right  to  exercise  a  public  or 
private  employment,  and  to  take  the  fees  and  emoluments 
thereunto  belonging,  are  also  incorporeal  hereditaments, 
whether  public,  as  those  of  magistrates,  or  private,  as 
of  bailiffs,  receivers,  and  the  like.  For  a  man  may  have  an 
estate  in  them,  either  to  him  and  his  heirs,  or  for  life,  or  for 
a  term  of  years,  or  during  pleasure  only ;  save  only  that 
offices  of  public  trust  cannot  be  granted  for  a  term  of  years, 
especially  if  they  concern  the  administration  of  justice,  for 
then  they  might  perhaps  vest  in  executors  or  administrators. 
Neither  can  any  judicial  office  be  granted  in  reversion,  be- 
cause though  the  grantee  may  be  able  to  perform  it  at  the 
time  of  the  grant,  yet  before  the  office  falls  he  may  become 
unable  and  insufficient;  but  ministerial  offices  may  be  so 


32    READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

granted,  for  those  may  be  executed  by  deputy.  Also  by 
statute,  5  and  6  Edw.  VI.,  c.  16,  no  public  office  (a  few  only 
excepted)  shall  be  sold,  under  pain  of  disability  to  dispose 
of  or  hold  it.  For  the  law  presumes  that  he  who  buys  an 
office  will,  by  bribery,  extortion,  or  other  unlawful  means, 
make  his  purchase  good,  to  the  manifest  detriment  of  the 
public. 

VI.  Dignities  bear  a  near  relation  to  offices.    Of  the  nature 
of  these  we  treated  at  large  in  the  former  book;1   it  will 
therefore  be  here  sufficient  to  mention  them  as  a  species  of 
incorporeal  hereditaments,  wherein  a  man  may  have  a  prop- 
erty or  estate. 

VII.  Franchises  are  a  seventh  species.     Franchise  and 
liberty  are  used  as  synonymous  terms,  and  their  definition 
is  a  royal  privilege  or  branch  of  the  king's  prerogative,  sub- 
sisting in  the  hands  of  a  subject.     Being  therefore  derived 
from  the  Crown,  they  must  arise  from  the  king's  grant;  or 
in  some  cases  may  be  held  by  prescription,  which,  as  has 
been  frequently  said,  presupposes  a  grant.     The  kinds  of 
them  are  various  and  almost  infinite.     I  will  here  briefly 
touch  upon  some  of  the  principal,  premising  only  that  they 
may  be  vested  in  either  natural  persons  or  bodies  politic ;  in 
one  man  or  in  many;  but  the  same  identical  franchise  that 
has  before  been  granted  to  one  cannot  be  bestowed  on  an- 
other, for  that  would  prejudice  the  former  grant. 

To  be  a  county  palatine  is  a  franchise,  vested  in  a  number 
of  persons.  It  is  likewise  a  franchise  for  a  number  of  per- 
sons to  be  incorporated,  and  subsist  as  a  body  politic,  with  a 
power  to  maintain  perpetual  succession,  and  do  other  cor- 
porate acts ;  and  each  individual  member  of  such  corporation 
is  also  said  to  have  a  franchise  or  freedom.  Other  fran- 
chises are  to  hold  a  court-leet ;  to  have  a  manor  or  lordship, 
or,  at  least,  to  have  a  lordship  paramount ;  to  have  waifs, 
wrecks,  estrays,  treasure-trove,  royal  fish,  forfeitures,  and 
deodands ;  to  have  a  court  of  one's  own,  or  liberty  of  holding 
pleas  and  trying  causes ;  to  have  the  cognizance  of  pleas, 
1  See  Book  I.,  ch.  12. 


CORPOREAL  AND  INCORPOREAL  INTERESTS.     33 

which  is  a  still  greater  liberty,  being  an  exclusive  right,  so 
that  no  other  court  shall  try  causes  arising  within  that  juris- 
diction ;  to  have  a  bailiwick,  or  liberty  exempt  from  the 
sheriff  of  the  county,  wherein  the  grantee  only  and  his 
officers  are  to  execute  all  process ;  to  have  a  fair  or  market, 
with  the  right  of  taking  toll,  either  there  or  at  any  other 
public  places,  as  at  bridges,  wharfs,  or  the  like,  which  tolls 
must  have  a  reasonable  cause  of  commencement  (as  in  con- 
sideration of  repairs  or  the  like),  else  the  franchise  is  illegal 
and  void ;  or,  lastly,  to  have  a  forest,  chase,  park,  warren,  or 
fishery,  endowed  with  privileges  of  royalty.  .  .  . 

VIII.  Corodies  are  a  right  of  sustenance,  or  to  receive 
certain  allotments  of  victual  and  provision  for  one's  main- 
tenance.   In  lieu  of  which  (especially  when  due  from  ecclesi- 
astical persons)  a  pension  or  sum  of  money  is  sometimes 
substituted.    And  these  may  be  reckoned  another  species  of 
incorporeal    hereditaments,   though   not   chargeable   on   or 
issuing  from  any  corporeal  inheritance,  but  only  charged  on 
the  person  of  the  owner  in  respect  of  such  his  inheritance. 
To  these  may  be  added  : 

IX.  Annuities,  which  are  much  of  the  same  nature,  only 
that  these  arise  from  temporal,  as  the  former  from  spiritual, 
persons.     An  annuity  is  a  thing  very  distinct  from  a  rent- 
charge,   with   which   it   is   frequently  confounded,   a   rent- 
charge  being  a  burden  imposed  upon  and  issuing  out  of 
lands,  whereas  an  annuity  is  a  yearly  sum  chargeable  only 
upon  the  person  of  the  grantor.     Therefore,  if  a  man  by 
deed  grant  to  another  the  sum  of  £20  per  annum  without 
expressing  out  of  what  lands  it  shall  issue,  no  land  at  all 
shall  be  charged  with  it ;  but  it  is  a  mere  personal  annuity, 
which  is  of  so  little  account  in  the  law  that  if  granted  to  an 
eleemosynary  corporation,  it  is  not  within  the  statutes  of 
mortmain,  and  yet  a  man  may  have  a  real  estate  in  it,  though 
his  security  is  merely  personal. 

X.  Rents  are  the  last  species  of  incorporeal  hereditaments. 
The  word  rent  or  render,  reditus,  signifies  a  compensation 
or  return,  it  being  in  the  nature  of  an  acknowledgment  given 


34    READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

for  the  possession  of  some  corporeal  inheritance.  It  is  de- 
fined to  be  a  certain  profit  issuing  yearly  out  of  lands  and 
tenements  corporeal.  It  must  be  a  profit;  yet  there  is  no 
occasion  for  it  to  be,  as  it  usually  is,  a  sum  of  money,  for 
spurs,  capons,  horses,  corn,  and  other  matters  may  be  ren- 
dered, and  frequently  are  rendered,  by  way  of  rent.  It  may 
also  consist  in  services  or  manual  operations ;  as,  to  plough 
so  many  acres  of  ground,  to  attend  the  king  or  the  lord  to 
the  wars,  and  the  like,  which  services,  in  the  eye  of  the  law, 
are  profits.  This  profit  must  also  be  certain,  or  that  which 
may  be  reduced  to  a  certainty  by  either  party.  It  must  also 
issue  yearly,  though  there  is  no  occasion  for  it  to  issue  every 
successive  year;  but  it  may  be  reserved  every 'second,  third, 
or  fourth  year ;  yet,  as  it  is  to  be  produced  out  of  the  profits 
of  lands  and  tenements  as  a  recompense  for  being  permitted 
to  hold  or  enjoy  them,  it  ought  to  be  reserved  yearly,  be- 
cause those  profits  do  annually  arise  and  are  annually  re- 
newed. It  must  issue  out  of  the  thing  granted,  and  not 
be  part  of  the  land  or  thing  itself ;  wherein  it  differs  from  an 
exception  in  the  grant,  which  is  always  of  part  of  the  thing 
granted.  It  must,  lastly,  issue  out  of  lands  and  tenements 
corporeal;  that  is,  from  some  inheritance  whereunto  the 
owner  or  grantee  of  the  rent  may  have  recourse  to  distrain. 
Therefore  a  rent  cannot  be  reserved  out  of  an  advowson,  a 
common,  an  office,  a  franchise,  or  the  like.  But  a  grant  of 
such  annuity  or  sum  may  operate  as  a  personal  contract,  and 
oblige  the  grantor  to  pay  the  money  reserved,  or  subject 
him  to  an  action  of  debt,  though  it  doth  not  affect  the  inheri- 
tance, and  is  no  legal  rent  in  contemplation  of  law. 

There  are  at  common  law  three  manner  of  rents ;  rent- 
service,  rent-charge,  and  rent-seek.  Rent-service  is  so  called 
because  it  hath  some  corporeal  service  incident  to  it,  as  at  the 
least  fealty  or  the  feudal  oath  of  fidelity.  For,  if  a  tenant 
holds  his  land  by  fealty  and  ten  shillings  rent,  or  by  the 
service  of  ploughing  the  lord's  land  and  five  shillings  rent, 
these  pecuniary  rents,  being  connected  with  personal  ser- 
vices, are  therefore  called  rent-service.  And  for  these,  in 


CORPOREAL  AND  INCORPOREAL  INTERESTS.     35 

case  they  be  behind  or  arrear  at  the  day  appointed,  the  lord 
may  distrain  of  common  right  without  reserving  any  special 
power  of  distress,  provided  he  hath  in  himself  the  reversion, 
or  future  estate  of  the  lands  and  tenements,  after  the  lease 
or  particular  estate  of  the  lessee  or  grantee  is  expired.  A 
rent-charge  is  where  the  owner  of  the  rent  hath  no  future 
interest  or  reversion  expectant  in  the  land,  as  where  a  man 
by  deed  maketh  over  to  others  his  whole  estate  in  fee-simple, 
with  a  certain  rent  payable  thereout,  and  adds  to  the  deed 
a  covenant  or  clause  of  distress,  that  if  the  rent  be  arrear  or 
behind,  it  shall  be  lawful  to  distrain  for  the  same.  In  this 
case  the  land  is  liable  to  the  distress,  not  of  common  right, 
but  by  virtue  of  the  clause  in  the  deed ;  and  therefore  it  is 
called  a  rent-charge,  because  in  this  manner  the  land  is 
charged  with  a  distress  for  the  payment  of  it.  Rent-seek, 
reditus  siccus,  or  barren  rent,  is,  in  effect,  nothing  more  than 
a  rent  reserved  by  deed,  but  without  any  clause  of  distress. 

There  are  also  other  species  of  rents,  which  are  reducible 
to  these  three.  Rents  of  assize  are  the  certain  established 
rents  of  the  freeholders  and  ancient  coypholders  of  a  manor, 
which  cannot  be  departed  from  or  varied.  Those  of  the 
freeholders  are  frequently  called  chief-rents,  reditus  capi- 
tales;  and  both  sorts  are  indifferently  denominated  quit- 
rents,  quieti  reditus;  because  thereby  the  tenant  goes  quit 
and  free  of  all  other  services.  When  these  payments  were 
reserved  in  silver  or  white  money,  they  were  anciently  called 
white-rents,  blanch-farms,  reditus  albi,  in  contradistinction 
to  rents  reserved  in  work,  grain,  or  baser  money,  which 
were  called  reditus  nigri,  or  black-mail.  Rack-rent  is  only 
a  rent  of  the  full  value  of  the  tenement  or  near  it.  A  fee- 
farm  rent  is  a  rent-charge  issuing  out  of  an  estate  in  fee, 
of  at  least  one-fourth  of  the  value  of  the  lands,  at  the  time 
of  its  reservation ;  for  a  grant  of  lands  reserving  so  con- 
siderable a  rent  is  indeed  only  letting  lands  to  farm  in  fee- 
simple,  instead  of  the  usual  methods  for  life  or  years. 

These  are  the  general  divisions  of  rents ;  but  the  differ- 
ence between  them  (in  respect  to  the  remedy  for  recovering 


36    READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

them)  is  now  totally  abolished,  and  all  persons  may  have 
the  like  remedy  by  distress  for  rent-seek,  rents  of  assize, 
and  chief-rents,  as  in  case  of  rents  reserved  upon  lease.1 

DIGBY,  HIST.  REAL  PROP.,  App.,  §  i.  At  the  head  of  his 
classification  of  rights  over  land  Blackstone  places  the  distinc- 
tion between  corporeal  and  incorporeal  hereditaments.  Un- 
satisfactory as  this  nomenclature  is,  it  points  to  a  fundamental 
distinction  between  two  classes  of  rights  in  rem  which  it  is 
convenient  to  take  at  the  outset  of  a  systematic  discussion  of 
the  law  of  land.  The  distinction  is  between  rights  over  land 
which  entitle  their  possessor  to  speak  of  the  thing  as  his  own, 
and  rights  over  land  which  is  in  ordinary  language  the  prop- 
erty of  another.  It  will  be  sufficient  to  style  the  former 
rights  of  ownership,  the  latter  rights  in  alieno  solo. 

The  word  "  ownership  "  is  here  used  as  applicable  to  that 
class  of  rights  which  entitle  the  person  having  them  to  speak 
of  the  subject  of  the  rights  as  his  own.  The  great  character- 
istic of  these  rights,  according  to  Mr.  Austin,  is  that  the 
person  having  them  may  put  the  thing  which  is  the  subject 
of  the  right  to  uses  which,  though  not  unlimited  (for  no 
rights  of  user  are  wholly  unlimited),  are  yet  indefinite.2 
Generally  speaking,  and  within  limitations  more  or  less  wide, 
tenant  in  fee,  tenant  for  life,  tenant  for  years  can  use  the 
thing  which  is  the  subject  of  the  right  as  he  pleases — can 
do  what  he  will  with  his  own. 

Opposite  to  these  rights  of  indefinite  user  is  the  class  of 
rights  the  very  essence  of  which  consists  in  the  fact  that  the 
person  having  the  right  can  only  put  the  land  which  is  the 
subject  of  it  to  uses  of  a  strictly  defined  and  limited  char- 
acter. A  person  who  has  a  right  of  way  over  his  neighbor's 
land  can  only  use  the  land  for  the  purpose  of  crossing  it  on 
foot  or  with  horses  or  cattle,  according  to  the  nature  of  the 
right,  which  depends  on  the  terms  of  the  original  grant  by 
which  it  has  been  created,  or  on  the  extent  to  which  the 
user  has,  as  a  matter  of  fact,  been  enjoyed  for  the  time  re- 
'Stat.  4  Geo.  II.,  c.  28.  'See  Austin,  lect.  xlvii. ,  xlviii. 


CORPOREAL  AND  INCORPOREAL  INTERESTS.     37 

quired  by  law  to  create  the  right.  The  rights  which  the 
creditor  has  under  certain  circumstances  over  his  debtor's 
land  may  also  be  referred  to  the  class  of  rights  in  alieno 
solo. 

These  rights  in  alieno  solo  comprise  a  large  portion  of  the 
rights  called  by  Blackstone  incorporeal  hereditaments.  In 
fact  the  classes  of  rights  in  alieno  solo  styled  easements  and 
profits,  seem  to  constitute  the  class  of  rights  which  Black- 
stone  designates  by  that  name.  .  .  . 

The  principal  rights  recognized  by  the  law  as  easements 
properly  so  called  are  rights  of  way/ i.e.,  of  going  over  the 
land  of  another  on  foot,  on  horseback,  or  with  carriages  or 
cattle,  in  a  certain  line,  or  for  certain  purposes ;  water- 
courses, for  example,  where  a  person  has  the  right  to  divert 
a  flow  of  water  to  which,  except  for  this  special  right,  the 
owner  of  the  praedium  serviens  would  be  entitled ;  the  right 
to  discharge  water  or  other  matter  upon  a  neighbor's  house 
or  land ;  the  right  to  restrain  a  use  of  land  which  obstructs 
the  access  of  light  and  air  to  an  "  ancient "  window. 

Of  profits,  the  principal  are  rights  of  common  of  various 
Kinds ;  .  .  .  rents  (the  right  to  a  rent  issuing  out  of  the 
land,  unconnected  with  the  relation  of  landlord  and  tenant) 
may  be  classed  under  the  same  head ;  as  also  might  tithes 
have  been  before  the  act  for  their 'commutation  (6  and  7 
Will.  IV.,  c.  71). 

It  appears  to  be  more  accurate  to  class  creditor's  rights 
under  the  head  of  rights  in  alieno  solo;  though  in  the  earlier 
stages  of  our  law,  as  has  been  seen  above,1  the  tendency 
in  the  case  of  mortgages  was  to  make  the  right  of  the  cred- 
itor after  default  absolute.  As  legal  ideas  progress  and  be- 
come more  refined,  the  notion  that  the  land  is  only  a  security 
for  the  debt  comes  into  prominence,  and  regulates  the  real 
rights  of  the  parties,  and  the  creditor  is  reduced  to  his  true 
position  of  having  simply  a  right  in  alieno  solo. 

>Chap.V.,§5(2). 


BOOK   II. 

OWNERSHIP  OF  REAL  PROPERTY. 
A.   LEGAL  OWNERSHIP. 

/.    The  Feudal  System. 
CHAPTER  I. 

f  ABSOLUTE  OWNERSHIP  AND  TENURE. 

Co.  LIT.,  65,  a.  For  the  better  understanding  of  that 
which  shall  be  said  hereafter,  it  is  to  be  knowne,  that  first, 
there  is  no  land  in  England  in  the  hands  of  any  subject  (as 
it  hath  been  said)  but  it  is  holden  of  some  lord  by  some  kind 
of  service,  as  partly  hath  been  touched  before.1  Secondly, 
all  the  lands  within  this  realme  were  originally  derived  from 
the  crowne,  and  therefore  the  king  is  sovereigne  lord,  or 
lord  paramont,  either  mediate  or  immediate,  of  all  and  every 
parcell  of  land  within  the  realme. 

ID.,  191,  a.  Upon  the  whole,  the  most  probable  conjec- 
ture appears  to  be  that  evident  traces  of  something  similar  to 
the  feud  may  be  traced  in  the  Saxon  polity  ;  that  it  was  estab- 
lished, with  its  concomitant  appendage  of  fruits  and  services, 
by  the  Norman  barons  in  the  possessions  which  were  par- 
celled out  among  them  by  the  conqueror ;  and  that,  about  the 
middle  of  his  reign,  it  was  formally  and  universally  established 
1  Co.  Lit.  i,  a.— ED. 


ABSOLUTE    OWNERSHIP    AND    TENURE.  39 

by  law.  This  universality  of  tenure  is,  perhaps,  peculiar  to 
England.  In  other  kingdoms  those  parts  of  the  lands  which 
were  permitted  to  remain  in  the  hands  of  the  natives,  and  a 
considerable  part  of  those  which  the  conquerors  parcelled 
out  among  themselves,  were  not  originally  subject  to  tenure. 
In  the  earliest  age,  however,  of  the  feudal  law,  some  ad- 
vantages attended  tenure,  and  frequently  occasioned  the  con- 
version of  allodial  into  feudal  property.  But  in  the  anarchy 
which  followed  the  removal  of  the  Carlovingian  dynasty, 
there  was  an  end  of  all  political  government ;  so  that  almost 
all  persons  found  it  advantageous  to  enter  into  the  feud. 
To  effect  this  they  delivered  up  their  lands,  sometimes  to 
the  sovereign,  sometimes  to  some  powerful  lord,  and  some- 
times to  the  church,  on  condition  to  receive  it  back  in  feudal- 
ity. Lands,  thus  delivered  and  returned,  received  the  ap- 
pellation of  feuda  data  et  oblata.  Some  portion  of  lands, 
however,  still  remained  free.  Of  this  the  proportion  differs 
in  the  countries  on  the  continent.  In  some,- the  courts  pre- 
sume it  to  be  feudal,  till  it  is  proved  to  be  all«dial.  In  others 
the  presumption  is  in  favor  of  its  allodiality.  .  .  .  But 
with  us,  in  the  eye  of  the  law,  tenure  is  universal — that  is, 
the  dominium  directum  of  all  the  lands  in  the  kingdom  is  in 
the  Crown ;  the  dominium  utile  of  them  is  in  the  tenant. — 
Butler's  note,  77,  t.  I. 

2  BL.  COM.,  104-105.  The  true  meaning  of  the  word  fee 
(feodum)  is  the  same  with  that  of  feud  or  fief,  and  in  its 
original  sense  it  is  taken  in  contradistinction  to  allo- 
dium, which  latter  the  writers  on  this  subject  define 
to  be  every  man's  own  land,  which  he  possesseth  merely 
in  his  own  right,  without  owing  any  rent  or  service 
to  any  superior.  This  is  property  in  its  highest  de- 
gree ;  and  the  owner  thereof  hath  absolutum  et  directum 
dominium,  and  therefore  is  said  to  be  seized  thereof  abso- 
lutely in  dominico  suo,  in  his  own  demesne.  But  feodum, 
or  fee,  is  that  which  is  held  of  some  superior  on  condition  of 
rendering  him  service,  in  which  superior  the  ultimate  prop- 


4O    READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

erty  of  the  land  resides.  And  therefore  Sir  Henry  Spelman1 
defines  a  feud  or  fee  to  be  the  right  which  the  vassal  or 
tenant  hath  in  lands,  to  use  the  same,  and  take  the  profits 
thereof  to  him  and  his  heirs,  rendering  to  the  lord  his  due 
services,  the  mere  allodial  property  of  the  soil  always  re- 
maining in  the  lord.  This  allodial  property  no  subject  in 
England  has,  it  being  a  received  and  now  undeniable  prin- 
ciple in  the  law  that  all  the  lands  in  England  are  holden 
mediately  or  immediately  of  the  king.  The  king  therefore 
only  hath  absolutum  et  directum  dominium;  but  all  subjects' 
lands  are  in  the  nature  of  feodum  or  fee,  whether  derived  to 
them  by  descent  from  their  ancestors  or  purchased  for  a 
valuable  consideration ;  for  they  cannot  come  to  any  man 
by  either  of  those  ways,  unless  accompanied  with  those 
feudal  clogs  which  were  laid  upon  the  first  feudatory  when 
it  was  originally  granted.  A  subject  therefore  hath  only  the 
usufruct,  and  not  the  absolute  property  of  the  soil;  or,  as 
Sir  Edward  Coke  expresses  it,2  he  hath  dominium  utile,  but 
not  dominium  directum.  And  hence  it  is  that  in  the  most 
solemn  acts  of  law  we  express  the  strongest  and  highest 
estate  that  any  subject  can  have  by  these  words :  "  He  is 
seized  thereof  in  his  demesne,  as  of  fee."  It  is  a  man's 
demesne,  dominicum,  or  property,  since  it  belongs  to  him 
and  his  heirs  forever;  yet  this  dominicuwt,  property,  or  de- 
mesne, is  strictly  not  absolute  or  allodial,  but  qualified  or 
feodal :  it  is  his  demesne,  as  of  fee — that  is,  it  is  not  purely 
and  simply  his  own,  since  it  is  held  of  a  superior  lord,  in 
whom  the  ultimate  property  resides. 

WILLIAMS,  PERS.  PROP.,  7-8.  The  first  lesson  to  be  learned 
on  the  nature  of  real  property  is  this :  that  of  such  property 
there  can  be  no  such  thing  as  an  absolute  ownership;  the 
utmost  that  can  be  held  or  enjoyed  in  real  property  is  an 
estate.  There  may  be  an  estate  for  life,  or  an  estate  tail,  or 
an  estate  in  fee-simple ;  but,  according  to  the  law  of  England, 
there  cannot  exist  over  landed  property  any  absolute  and 
1  Of  Feuds,  c.  i.  !  Co.  Litt.  i. 


ABSOLUTE  OWNERSHIP  AND  TENURE.  41 

independent  dominion.  All  the  land  in  the  kingdom  is  the 
subject  of  tenure ;  and  if  the  estate  is  not  holden  of  any  sub- 
ject, at  any  rate  it  must  be  held  of  the  Crown.  With  regard 
to  personal  property,  however,  the  primary  rule  is  precisely 
the  reverse.  Such  property  is  essentially  the  subject  of 
absolute  ownership,  and  cannot  be  held  for  any  estate.  It  is 
true  that  the  phrase  personal  estate  is  frequently  used  as 
synonymous  with  personal  property ;  but  this  general  use 
of  the  term  estate  should  not  mislead  the  student  into  the 
supposition  that  there  can  be  any  such  thing  as  an  estate  in 
personalty  properly  so  called.  The  rule  that  no  estate  can 
subsist  in  personal  property  would  seem  to  have  originated 
in  the  nature  of  such  property  in  early  times.  Goods  and 
chattels  of  a  personal  kind,  in  other  words,  movable  articles, 
then  formed,  as  we  have  seen,  the  whole  of  a  man's  personal 
estate.  And  such  articles,  it  is  evident,  may  be  the  subjects 
of  absolute  ownership,  and  have  not  those  enduring  qualities 
which  would  render  them  fit  to  be  holden  by  any  kind  of 
feudal  tenure.  As  personal  property  increased  in  value  and 
variety,  many  kinds  of  property  of  a  more  permanent  nature 
became,  as  we  have  seen,  comprised  within  the  class  of 
personal,  such  as  leases  for  years,  of  whatever  length,  and 
Consolidated  Bank  Annuities.  But  the  rule  that  there  can 
be  no  estate  in  chattels,  the  reason  of  which  was  properly 
applicable  only  to  movable  goods,  still  continues  to  be  applied 
generally  to  all  sorts  of  personal  property,  both  corporeal 
and  incorporeal. 

2  POLL.  &  MAIT.,  HIST.  ENG.  LAW,  2-6.  One  of  the 
main  outlines  of  our  mediaeval  law  is  that  which  divides 
material  things  into  two  classes.  Legal  theory  speaks  of 
the  distinction  as  being  that  between  "  movables  "  and  "  im- 
movables " ;  the  ordinary  language  of  the  courts  seldom 
uses  such  abstract  terms,  but  is  content  with  contrasting 
"  lands  and  tenements  "  with  "  goods  and  chattels."  We 
have  every  reason  to  believe  that  in  very  remote  times  our 
law  saw  differences  between  these  two  classes  of  things; 


42    READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

but  the  gulf  between  them  has  been  widened  and  deepened 
both  by  feudalism  and  by  the  evolution  of  the  ecclesiastical 
jurisdiction.  We  shall  be  better  able  to  explore  this  gulf 
when,  having  spoken  of  lands,  we  turn  to  speak  of  chattels ; 
but  even  at  the  outset  we  shall  do  well  to  observe,  that  if  in 
the  thirteenth  century  the  chasm  is  already  as  wide  as  it  will 
ever  be,  jts  depth  has  yet  to  be  increased  by  the  operation  of 
legal  theory.  The  facts  to  which  the  lawyers  of  a  later  day 
will  point  when  they  use  the  word  "  hereditaments  "  and 
when  they  contrast  "  real  "  with  "  personal  property  "  are 
already  in  existence,  though  some  of  them  are  new;  but 
these  terms  are  not  yet  in  use.  Still  more  important  is  it  to 
observe  that  Glanvill  and  Bracton — at  the  suggestion,  it  may 
be,  of  foreign  jurisprudence — can  pass  from  movables  to 
immovables  and  then  back  to  movables  with  an  ease  which 
their  successors  may  envy.  Bracton  discourses  at  length 
about  the  ownership  of  things  (rerum),  and  though  now  and 
again  he  has  to  distinguish  between  res  mobiles  and  res  im- 
mobile's,  and  though  when  he  speaks  of  a  res  without  any 
qualifying  adjective,  he  is  thinking  chiefly  of  land,  still  he 
finds  a  great  deal  to  say  about  things  and  the  ownership 
of  things  which  is  to  hold  good  whatever  be  the  nature 
of  the  things  in  question.  The  tenant  in  fee  who  holds 
land  in  demesne,  is,  like  the  owner  of  a  chattel,  dominus 
rei;  he  is  proprietarius;  he  has  dominium  et  proprietatem 
rei.  That  the  law  of  England  knows  no  ownership  of  land, 
or  will  concede  such  ownership  only  to  the  king,  is  a 
dogma  that  has  never  entered  the  head  of  Glanvill  or  of 
Bracton.  .  .  . 

But  we  ought  to  hesitate  long  before  we  condemn  Brac- 
ton and  those  founders  of  the  common  law  whose  spokes- 
man he  was,  for  calling  the  tenant  in  demesne  an  owner  and 
proprietor  of  an  immovable  thing.  Only  three  courses  were 
open  to  them:  (i)  To  deny  that  any  land  in  England  is 
owned;  (2)  to  ascribe  the  ownership  of  the  whole  country 
to  the  king;  (3)  to  hold  that  an  owner  is  none  the  less  an 
owner  because  he  and  his  land  owe  services  to  the  king  or  to 


ABSOLUTE  OWNERSHIP  AND  TENURE.  43 

some  other  lord.  We  can  hardly  doubt  that  they  were  right 
in  choosing  the  third  path ;  the  second  plunges  into  obvious 
falsehood ;  the  first  leads  to  a  barren  paradox.  .  .  .  As 
a  matter  of  fact,  the  services  that  the  tenant  in  fee  owed  for 
his  land  were  seldom  very  onerous ;  often  they  were  nominal ; 
often,  as  in  the  case  of  military  service,  scutage  and  suit  of 
court,  they  fell  within  what  we  should  regard  as  the  limits  of 
public  law.  Again,  it  could  hardly  be  said  that  the  tenant's 
rights  were  conditioned  by  the  performance  of  these  services, 
for  the  lord,  unless  he  kept  up  an  efficient  court  of  his  own, 
could  not  recover  possession  of  the  land  though  the  services 
were  in  arrear.  The  tenant,  again,  might  use  or  abuse  or 
waste  the  land  as  pleased  him  best.  If  the  lord  entered  on 
the  land,  unless  it  were  to  distrain — and  distress  was  a  risky 
process — he  was  trespassing  on  another  man's  soil ;  if  he 
ejected  the  tenant  "  without  a  judgment,"  he  was  guilty  of 
a  disseisin.  As  against  all  third  persons  it  was  the  tenant 
in  desmesne  who  represented  the  land ;  if  a  stranger  tres- 
passed on  it  or  filched  part  of  it  away,  he  wronged  the  ten- 
ant, not  the  lord.  And  then  the  king's  court  had  been  secur- 
ing to  the  tenant  a  wide  liberty  of  alienation — for  an  owner 
must  be  able  to  alienate  what  he  owns.  The  feudal  casual- 
ties might  indeed  press  heavily  upon  the  tenant,  but  they 
need  not  be  regarded  as  restrictions  on  ownership.  An  in- 
fant land-owner  must  be  in  ward  to  some  one,  and  to  some 
one  who  as  a  matter  of  course  will  be  entitled  to  make  a 
profit  X)f  the  wardship :  but  if  a  boy's  ownership  of  his  land 
would  not  be  impaired  by  his  being  in  ward  to  an  uncle,  why 
should  it  be  impaired  by  his  being  in  ward  to  his  lord?  If 
the  tenant  commits  felony,  his  lands  will  escheat  to  his  lord  ; 
but  iris  chattels  also  will  be  forfeited,  and  it  may  well  be  that 
this  same  lord  (since  he  enjoys  the  franchise  known  as 
catalla  fclonum}  will  take  them.  It  is  very  possible  that 
Bracton  saw  the  Roman  land-owner  of  the  classical  age 
holding  his  land  "  of  "  the  emperor  by  homage  and  service ; 
it  was  common  knowledge  that  the  modern  Roman  emperor 
was  surrounded  by  feudatories ;  but  at  any  rate  there  was  no 


44    READINGS  IN  THE  LAW  OF 'REAL  PROPERTY. 

unfathomable  chasm  between  the  English  tenancy  in  fee  and 
that  dominium  of  which  the  Institutes  speak. 

DIGBY,  HIST.  REAL  PROP.,  Ch.  I.,  sec.  i,  §  2.  Bookland 
and  Falkland. — From  very  early  times  it  was  common  to 
make  grants  of  land  to  religious  bodies  or  to  individuals. 
The  grants  were  effected  by  the  king  as  the  chief  of 
the  community,  with  the  consent  of  the  great  men,  who 
in  conjunction  with  the  great  ecclesiastics,  after  the  intro- 
duction of  Christianity,  formed  the  Witenagemot,  or 
Assembly  of  the  Wise.  The  grant  was  made  by  means  of 
a  "  book  "  or  charter.  Land  thus  granted  was  said  to  be 
"  booked  "  to  the  grantee,  and  was  called  bocland  or  book- 
land.  Thus  bookland  comes  to  mean  land  held  under  a 
written  instrument  by  private  persons  or  churches,  who  or 
whose  predecessors  are,  or  at  least  are  supposed  to  have 
been,  grantees  of  the  community.  The  practice  seems,  after 
the  introduction  of  Christianity,  to  have  prevailed  chiefly  in 
favor  of  religious  houses,  and  in  this  way  the  great  ecclesias- 
tical corporations  acquired  their  property.  Frequent  gifts 
were  also  made  to  individuals,  chiefly  the  king's  thegns  or 
ministri. 

In  process  of  time  the  conception  of  bookland  seems  to  be 
coextensive  with  that  of  alodial  land.  The  term  "alodial" 
originally  had  no  necessary  reference  to  the  mode  in  which 
the  ownership  of  land  had  been  conferred ;  it  simply  meant 
land  held  in  absolute  ownership,  not  in  dependence  upon  any 
other  body  or  person  in  whom  the  proprietary  rights  were 
supposed  to  reside,  or  to  whom  the  possessor  of  the  land 
was  bound  to  render  service.  It  would  thus  properly  apply 
to  the  land  which  in  the  original  settlement  had  been  allotted 
to  individuals,  while  bookland  was  primarily  applicable  to 
land  the  title  to  which  rested  on  a  formal  grant.  Before 
long,  however,  the  words  appear  to  have  been  used  synony- 
mously to  express  land  held  in  absolute  ownership,  the  sub- 
ject of  free  disposition  inter  vivos  or  by  will.  .  .  . 

As  a  general  rule,  when  such  a  grant  was  made  to  an 


ABSOLUTE  OWNERSHIP  AND  TENURE.  45 

individual,  it  is  expressed  in  the  charter  itself  that  he  is  to 
hold  the  land  free  from  all  burdens,  that  he  is  to  be  under 
no  obligation  to  render  anything  in  the  shape  of  money  pay- 
ment or  services  of  any  kind  to  the  grantor  of  the  land,  with 
the  exception  of  the  threefold  service,  the  trinoda  necessitas, 
to  which  all  lands  were  subject.  This  consisted  of  the  duty 
of  rendering  military  service  (expeditio),  and  of  repairing 
bridges  and  fortresses  (pontis  arcisve  construct™).  These 
were  duties  imposed  on  all  landholders,  distinct  from  the 
feudal  services  of  later  times,  but  tending  more  and  more 
to  become  duties  attaching  to  the  possession  of  the  land  owed 
to  and  capable  of  being  enforced  by  the  king  or  the  great 
man  of  the  district. 

.  ID.,  Ch.  I.,  sec.  u.  Tlje  principal  agents  by  which 
alodial  owners  of  land  were  turned  into  feudal  tenants  were 
probably  conquest  and  need  of  protection.  The  lot  of  the 
conquered  is  always  hard,  and  doubtless  the  alodial  holder 
of  land  was  glad  to  retain  the  enjoyment  of  a  portion  of  his 
property  on  such  terms  as  the  conqueror  chose  to  impose. 
The  usual  conditions  were  that  the  old  free  proprietor  should 
become  the  "  man  "  of  the  conqueror,  and  should  be  bound 
to  military  service.  Moreover,  in  those  troubled  times  it 
often  became  a  necessity  for  the  poor  alodial  holder  to  enter 
into  the  train  of  retainers  of  a  powerful  lord  in  order  to 
obtain  protection ;  hence  the  practice  of  "  commendation," 
of  becoming  the  man  or  vassal  of  the  lord,  receiving  in 
return  the  protection  without  which  the  preservation  of  life 
and  property  was  impossible.  An  element  in  this  process 
was  the  surrendering  of  the  alodial  lands,  to  be  received  back 
under  the  condition  of  rendering  military  or  other  service. 
Such  is  in  outline  .  the  probable  account  of  the  origin  of 
the  great  characteristic  of  feudalism — military  tenure  of 
lands ;  known  in  our  law  by  the  name  of  tenure  in  knight- 
service,  or  in  chivalry. 


CHAPTER  II. 

FEUDAL  TENURE. 

(a)  In  General. 

Co.  LIT.,  i,  a.  "  Tenant,"  in  Latin  tenens,  is  derived  of 
the  verbe  teneo,  and  hath  in  the  law  five  significations. 
.  .  .  2.  It  signifieth  the  tenure  or  the  service  whereby 
the  lands  and  tenements  be  holden;  .  .  .  and  he  is 
called  a  tenant  [or  holder]  because  he  holdeth  of  some  su- 
perior lord  by  some  service.  And  therefore  the  king  in  this 
sense  cannot  be  said  to  be  a  tenant,  because  he  hath  no  su- 
perior but  God  Almighty. 

ID.,  191,  a.  Sir  Henry  Spelman,  after  Cujas,  defines  a 
fief  to  be,  "A  right  which  the  vassal  hath  in  land,  or  some 
immoveable  thing  of  his  lord's,  to  use  the  same,  and  take 
the  profits  thereof,  hereditarily,  rendering  unto  his  lord  such 
feudal  duties  and  services  as  belong  to  military  tenure ;  the 
mere  propriety  of  the  soil  always  remaining  to  the  lord." 
This  definition  appears  accurate  and  comprehensive :  and  an 
analysis  of  it  may  point  out  those  peculiar  and  characteris- 
tick  marks  which  distinguish  the  feudal  law  from  every 
other  law.  1st.  Where  the  soil,  and  the  right  to  the  profits 
of  the  soil,  meet  in  the  same  person,  he  may  be  said  to  have 
an  absolute  and  unmixed  estate  in  his  land.  This  absolute 
and  unmixed  estate,  the  subject  of  every  kingdom  not  gov- 
erned by  the  feudal  polity,  so  far  as  respects  the  relation  be- 
tween sovereign  and  subject,  appears  to  possess.  But,  by 
the  feudal  law,  with  respect  to  the  relation  between  the  sov- 
ereign and  the  subject,  the  right  to  the  soil,  and  the  right  to 


FEUDAL    TENURE.  47 

the  profits  of  the  soil,  were  separate ;  the  tenant  being-  in- 
vested with  the  latter,  the  sovereign  continuing  to  be  in- 
titled  to  the  former.  This  right  to  the  profits  was  of  the 
most  extensive  nature;  it  gave  the  tenant,  except  for  the 
purpose  of  alienation,  the  complete  power  or  dominion  over 
the  land  during  the  term  of  his  tenure.  .  .  .  This  right 
in  the  vassal  to  the  use  and  profits  of  the  land,  while  the  di- 
rect dominion  of  the  land  remained  in  the  lord,  was,  with 
respect  to  the  relation  between  the  sovereign  and  the  subject, 
a  new  and  original  point  of  connexion,  and  one  of  those 
marks  which  distinguish  the  feudal  from  every  other  law. 

2.  Another  of  these  marks  is,  that  immoveable  or 
real  property  only  was  admitted  to  be  held  in  feudality,  or,  in 
other  words,  to  be  the  substance  of  a  fief.  Wherever  the  con- 
querors we  speak  of  established  themselves  they  seized  what- 
ever they  desired  of  the  property  of  the  conquered,  and  the 
general  allotted  it  to  the  superior  officers  of  the  army,  and 
these  again  divided  it,  in  smaller  parcels,  among  the  inferior 
officers.  The  moveable,  as  well  as  the  immoveable  property 
of  the  conquered  was  seized  and  divided  by  the  conquerors ; 
but  moveable  property,  from  its  fluctuating  and  perishable 
nature,  was  ill  calculated  to  serve,  either  as  the  sign  or  the 
subject  of  a  permanent  connection.  This  was  particularly 
the  case  in  those  days  when  it  had  in  no  point  of  view  ac- 
quired, or  was  considered  susceptible  of,  those  artificial  mod- 
ifications or  other  durable  qualities,  in  the  intendment  of 
law,  which  it  now  possesses.  Land,  therefore,  or  immove- 
able property,  alone,  became  the  subject  of  feudal  ten- 
ure. .  .  . 

But  at  the  first  establishment  of  fiefs,  land  or  immoveable 
property,  in  the  narrowest  sense  of  that  word,  was  the  sub- 
ject of  a  fief.  That  this  species  of  property,  to  the  utter  ex- 
clusion of  every  species  of  moveables,  should  be  a  point  of 
connexion  between  the  sovereign  and  the  subject,  is  an- 
other distinctive  mark  of  feudality.  To  this  it  is  owing,  that 
while  in  this  country,  and  in  every  other  country  whose 
jurisprudence  is  of  a  feudal  extraction,  the  difference  be- 


'48    READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

tween  real  and  personal,  or  immoveable  and  moveable  prop- 
erty, is  so  strongly  marked,  and  the  legal  qualities  and  in- 
cidents of  the  two  species  of  property  are,  in  so  many  im- 
portant consequences,  utterly  dissimilar,  the  distinction  be- 
tween them  in  the  civil  law,  except  in  the  term  of  prescrip- 
tion, is  seldom  discoverable. 

3.  The  remaining  point  of  difference  between  the  feudal 
polity  and  the  polity  of  other  states  is,  the  nature  of  the  re- 
lation between  the  chief  and  the  vassals.  This  is  particularly 
distinguishable  by  six  circumstances:  istly,  The  relation 
between  them  was  purely  of  a  military  nature ;  2dly,  Behind 
the  sovereign  and  his  immediate  feudatories  there  followed 
a  numerous  train  of  arrere  vassals,  or  sub-feudatories,  be- 
tween whom  and  the  first  or  immediate  feudatory  there  sub- 
sisted a  relation  nearly  similar  to  that  between  him  and  the 
first  or  chief  lord ;  3rdly,  This  relation  was  territorial,  and 
was  not  considered  to  arise  from  the  general  allegiance  due 
from  a  subject  to  a  sovereign,  but  from  an  implied  obliga- 
tion supposed  to  be  annexed  to  the  tenure  of  the  fee ;  4thly, 
The  right  of  administering  justice  was  an  appendage  of  this 
military  relation,  and  originally  commensurate  to  it  in  its 
territorial  extent;  5thly,  The  lord  was  not  allowed  to  alien 
the  fee  without  his  tenant's  consent,  nor  the  tenant  without 
the  consent  of  his  lord ;  and  6thly,  Though  in  point  of  dig- 
nity, of  rank,  and  of  honor,  the  lord,  according  to  the  ideas 
of  those  times,  enjoyed  a  splendid  pre-eminence  over  his 
vassals,  his  power  over  them  was,  comparatively  speaking, 
extremely  small.  Thus,  therefore,  the  supposed  preserva- 
tion of  the  dominium  directum,  or  real  ownership,  to  the 
lord,  after  he  had  parted  with  the  beneficial  ownership,  or 
dominium  utile,  to  the  tenant;  the  exclusion  of  moveable 
property  from  serving  either  as  the  sign  or  the  subject  of  the 
relation  between  the  sovereign  and  the  feudatory;  and  the 
military  nature  of  this  relation,  including  in  it  the  other  cir- 
cumstances before  noticed,  should  be  considered  as  three 
principal  points  which  distinguish  the  law  of  feuds  from 
every  other  law. — Butler's  note,  77,  n. 


FEUDAL    TENURE.  49 

2  BL.  COM.,  59.  Almost  all  the  real  property  of  this  king- 
dom is,  by  the  policy  of  our  laws,  supposed  to  be  granted  by, 
dependent  upon,  and  holden  of  some  superior  lord,  by  and  in 
consideration  of  certain  services  to  be  rendered  to  the  lord  by 
the  tenant  or  possessor  of  this  property.  The  thing  holden  is 
therefore  styled  a  tenement,  the  possessors  thereof  tenants, 
and  the  manner  of  their  possession  a  tenure.  Thus  all  the 
land  in  the  kingdom  is  supposed  to  be  holden,  mediately  or 
immediately,  of  the  king,  who  is  styled  the  lord  paramount, 
or  above  all.  Such  tenants  as  held  under  the  king  imme- 
diately, when  they  granted  out  portions  of  their  lands  to  in- 
ferior persons,  became  also  lords  with  respect  to  those  in- 
ferior persons,  as  they  were  still  tenants  with  respect  to  the 
king,  and,  thus  partaking  of  a  middle  nature,  were  called 
mesne,  or  middle,  lords.  So  that  if  the  king  granted  a 
manor  to  A.,  and  he  granted  a  portion  of  the  land  to  B.,  now 
B.  was  said  to  hold  of  A.  and  A.  of  the  king;  or,  in  other 
words,- B.  held  his  lands  immediately  of  A.,  but  mediately 
of  the  king.  The  king  therefore  was  styled  lord  para- 
mount ;  A.  was  both  tenant  and  lord,  or  was  a  mesne  lord, 
and  B.  was  called  tenant  paravail,  or  the  lowest  tenant; 
being  he  who  was  supposed  to  make  avail  or  profit  of  the 
land.  In  this  manner  are  all  the  lands  of  the  kingdom 
holden,  which  are  in  the  hands  of  subjects;  for,  accord- 
ing to  Sir  Edward  Coke,1  in  the  law  of  England  we  have 
not  properly  allodium;  which,  we  have  seen,  is  the  name 
by  which  the  feudists  abroad  distinguished  such  estates  of 
the  subject  as  are  not  holden  of  any  superior.  So  that 
at  the  first  glance  we  may  observe  that  our  lands  are  either 
plainly  feuds  or  partake  very  strongly  of  the  feodal 
nature. 

All  tenures  being  thus  derived,  or  supposed  to  be  de- 
rived, from  the  king,  those  that  held  immediately  under  him, 
in  right  of  his  crown  and  dignity,  were  called  his  tenants  in 
capite,  or  in  chief;  which  was  the  most  honorable  species 
of  tenure,  but  at  the  same  time  subjected  the  tenants  to 

1 1  Inst.  i. 


5O    READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

greater  and  more  burthensome  services  than  inferior  ten- 
ures did. 

DIGBY,  HIST.  REAL  PROP.,  Ch.  I.,  sec.  n.,  §  2.  Devel- 
opment of  the  Idea  of  Tenure. — A  principal  result  of  the 
Norman  Conquest  upon  the  customary  law  of  land  seems  to 
have  been  the  development  of  the  idea  of  tenure,  the  more 
precise  definition  of  the  mutual  rights  and  duties  of  lord  and 
tenant,  and,  as  a  necessary  consequence,  the  introduction  of 
a  technical  phraseology.  This  result  was  not  brought  about 
by  any  positive  enactment.  It  was  due  to  the  introduction  of 
Norman  customs  and  ideas,  and  their  combination  with 
Anglo-Saxon  customs  and  ideas. 

Thus  was  produced  what  is  called  the  feudal  system,  or 
the  feudal  mode  of  holding  lands.  We  find  that  wherever 
there  is  a  duty  imposed  on  the  possessor  of  land,  whether 
of  a  military  or  other  character,  the  tendency  after  the  Con- 
quest was  to  regard  the  duty  as  the  service  by  which  the 
land  was  held  of  the  king  or  lord.  Thus  the  Anglo-Saxon 
custom  that  every  five  hides  should  furnish  a  fully-armed 
man  would  be  transformed  into  a  tenure  of  so  much  land  by 
the  duty  or  service  of  providing  a  miles.  The  duty  of  at- 
tendance on  the  lord's  court  became  the  tenure  by  suit  and 
service,  and  the  duty  of  performing  agricultural  service  on 
the  lord's  domain  became  the  service  by  which  the  land  of 
the  poor  freeholder  or  villein  was  held. 

Domesday  bears  abundant  traces  of  the  growth  of  the  idea 
of  tenure,  though  we  still  hear  of  the  men  (homines)  of  a 
lord  rather  than  of  his  tenants.  The  land  is  everywhere 
spoken  of  as  having  been  held  of  King  Edward  or  some 
other  lord.  The  word  feudum  or  feuum  is  used  to  designate 
the  land  which  is  held  as  a  benefice  and  not  alodially.  The 
personal  relation  of  lord  and  man  is  closely  connected  with, 
and  generally,  though  not  always,  merged  in  the  relation 
of  lord  and  tenant.  The  various  modes  in  which  land  was 
held  by  different  classes  of  persons  before  the  Conquest  were 
now  tending  to  become  different  species  of  tenure,  and  grad- 


FEUDAL    TENURE.  5! 

ually  acquiring  definite  technical  names.  Thus  land  held  by 
religious  houses,  which  before  the  Conquest  was  always  free 
from  all  temporal  service  except  the  trinoda  necessitas,  is 
now  said  to  be  held  by  the  tenure  called  libera  eleemosyna 
(free  alms  or  frankalmoign).  It  is,  however,  still  regarded 
as  free  from  all  temporal  dues,  and  the  religious  corpora- 
tion is  only  bound  to  spiritual  service.  The  services  due  to 
the  king,  which  if  rendered  to  one  of  less  exalted  rank  would 
have  been  considered  degrading  to  a  freeman,  were  still  in 
the  time  of  Domesday  rendered  by  the  taint  regis,  but  were 
no  doubt  becoming  connected  with  the  holding  of  the  land, 
and  passing  into  the  exalted  tenure  of  magnum  servitium, 
or  grand  serjeanty.  Hence  it  was  that  lands  held  by  this 
tenure  can  only  be  held  of  the  king.  But  most  important  of 
all  is  tenure  per  militiam,  in  chivalry  or  by  knight-service. 
Here  again  the  evidence  afforded  by  Domesday  seems  to 
show  that  this  species  of  tenure  had  not  yet  definitely  taken 
its  place  in  the  legal  classification  of  rights  of  property,  but 
was  gradually  becoming  recognized.  No  doubt  military  ten- 
ure first  prevailed  between  the  king  and  his  immediate  ten- 
ants— those  who  had  actually  received  new  grants  of  land, 
or  their  old  lands  regranted  to  them.  By  the  Anglo-Saxon 
law  the  public  duty  was  imposed  on  such  tenants  of  render- 
ing military  service  for  the  defense  of  the  country.  Con- 
tinental feudal  notions  would  transform  this  public  duty  into 
the  obligation  of  rendering  military  service  to  the  king  as 
lord  of  the  tenants'  land.  But  his  position  as  king  as  well  as 
lord  was  never  wholly  lost  sight  of.  If  a  mesne  lord,  that 
is,  a  lord  who  was  himself  a  tenant  of  the  king  or  of  some 
superior  lord,  made  a  grant  of  land  to  be  held  of  himself  by 
military  services,  though  the  land  was  of  course  held  of  the 
mesne  lord,  the  military  service  was  regarded  as  due  not  to 
the  immediate  lord,  but  to  the  king. 

i  POLL.  &  MAIT.,  HIST.  ENG.  LAW,  210-217,  §  i.  Tenure- 
in  General. — Every  acre  of  English  soil  and  every  proprietary 
right  therein  have  been  brought  within  the  compass  of  a  single 


52    READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

formula,  which  may  be  expressed  thus  :  Z.  tenet  terrain  illani 
de  .  .  .  domino  Rege.  The  king  himself  holds  land 
which  is  in  every  sense  his  own ;  no  one  else  has  any  pro- 
prietary right  in  it ;  but  if  we  leave  out  of  account  this  royal 
demesne,  then  every  acre  of  land  is  "  held  of  "  the  king.  The 
person  whom  we  may  call  its  owner,  the  person  who  has  the 
right  to  use  and  abuse  the  land,  to  cultivate  it  or  leave  it  un- 
cultivated, to  keep  all  others  off  it,  holds  the  land  of  the  king 
either  immediately  or  mediately.  In  the  simplest  case  he 
holds  it  immediately  of  the  king ;  only  the  king  and  he  have 
rights  in  it.  But  it  well  may  happen  that  between  him  and  the 
king  there  stand  other  persons ;  Z.  holds  immediately  of  V ., 
who  holds  of  X.,  who  holds  of  V.,  who  holds  ...  of  A., 
who  holds  of  the  king.  Let  us  take  one  real  instance : — In 
Edward  I.'s  day  Roger  of  St.  German  holds  land  at  Paxton 
in  Huntingdonshire  of  Robert  of  Bedford,  who  holds  of 
Richard  of  Ilchester,  who  holds  of  Alan  of  Chartres,  who 
holds  of  William  le  Boteler.who  holds  of  Gilbert  Neville,  who 
holds  of  Devorguil  Balliol",  who  holds  of  the  king  of  Scotland, 
who  holds  of  the  king  of  England.1  A  feudal  ladder  with 
so  many  rungs  as  this  has,  is  uncommon ;  but  theoretically 
there  is  no  limit  to  the  possible  number  of  rungs,  and  prac- 
tically, as  will  be  seen  hereafter,  men  have  enjoyed  a  large 
power,  not  merely  of  adding  new  rungs  to  the  bottom  of  the 
ladder,  but  of  inserting  new  rungs  in  the  middle  of  it.  The 
person  who  stands  at  the  lower  end  of  the  scale,  the  person 
who  seems  most  like  an  owner  of  the  land,  and  who  has  a 
general  right  of  doing  what  he  pleases  with  it,  is  said  to  hold 
the  land  in  demesne ;  Z.  tenet  terrain  in  dominico,  or  in  dom- 
inico  suo.  We  suppose  that  he  holds  it  of  Y.;  in  that  case  Y. 
is  the  lord  (donunus}  of  Z.,  and  Z.  is  the  tenant  (tenens)  of 
Y.  But  Y.  again  is  said  to  hold  the  land ;  he  holds  it,  how- 
ever, not  in  demesne  but  in  service  (tenet  terram  illam,  non 
tamen  in  dominico  sed  in  serritio} ;  and  Y.  again  must  hold 
it  of  some  one — let  us  say  of  X. — whose  tenant  he  will  be, 
who  will  be  his  lord,  and  who  also  will  be  said  to  hold  the 
1  Rot.  Hund.  ii  ,  673. 


FEUDAL    TENURE.  53 

land  in  service.  Ultimately  we  shall  reach  the  king;  A.  or 
some  other  person,  will  hold  the  land  immediately  of  the  king 
and  be  his  tenant-in-chief  (in  capite).  Every  person  who 
stands  between  the  king  and  him  who  holds  in  demesne, 
every  mesne  lord  or  mesne,  is  both  lord  and  tenant,  lord  as 
regards  those  who  stand  below  him,  tenant  as  regards  those 
who  stand  above. 

Before  attempting  to  analyze  this  notion  of  dependent  and 
derivative  tenure,  let  us  first  observe  how  universally  it  has 
been  applied.  Not  only  has  every  acre  of  land  been  brought 
within  its  scope,  so  that  the  English  lawyer  cannot  admit 
even  a  bare  possibility  of  land  being  holden  of  no  one,  but 
the  selfsame  formula  has  been  made  to  cover  relationships 
which  have  little  in  common.  An  Earl  of  Chester,  who 
may  at  times  behave  like  a  sovereign  prince,  holds  his  county 
palatine  of  the  king ;  the  cottier,  who  like  enough  is  person- 
ally unfree,  holds  his  little  croft  of  some  mesne  lord,  or  of 
the  king  himself.  Even  when  of  late  a  new  mode  of  culti- 
vating the  soil  has  made  its  appearance  and  lords  have  let 
land  to  farmers  for  terms  of  years  at  substantial  money 
rents,  this  new  relationship  has  been  brought  within  the  old 
formula :  the  lessee  holds  the  land  of  the  lessor.  Even  when 
the  tenant  has  no  rent  to  pay,  no  temporal  service  to  perform, 
even  when  the  land  has  been  devoted  to  God  and  the  saints 
and  is  possessed  by  a  religious  house  in  free  alms,  still  the 
formula  has  been  found  equal  to  the  occasion :  the  religious 
community  holds  the  land  of  the  donor.  We  see  at  once, 
therefore,  that  the  formula  must  be  very  elastic,  that  the 
notion  of  tenure  must  be  in  the  highest  degree  an  abstract 
notion.  In  England  tenure  is  no  mark  of  a  class,  and  we 
may  say  the  same  of  "  feudal  "  tenure.  .  .  . 

It  is  clear  then  that  of  dependent  or  of  feudal  tenure  in 
general  little  can  be  said ;  but  still  some  analysis  of  it  is  pos- 
sible. We  may  at  least  notice  that  it  seems  to  be  a  complex 
of  personal  rights  and  of  real  rights.  On  the  one  hand,  the 
lord  has  rights  against  his  tenant,  the  tenant  rights  against 
his  lord ;  the  tenant  owes  services  to  his  lord ;  the  lord,  at 


54    READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

least  normally,  owes  defence  and  warranty  to  his  tenant. 
On  the  other  hand,"  both  lord  and  tenant  have  rights  in  the 
land,  in  the  tenement,  the  subject  of  the  tenure.  The  tenant 
in  demesne,  the  tenant  on  the  lowest  step  of  the  feudal  scale, 
obviously  has  rights  in  the  land  amounting  to  a  general,  in- 
definite right  of  using  it  as  he  pleases.  But  his  lord  also  is 
conceived  as  having  rights  in  the  land.  We  have  not  ad- 
equately described  his  position  by  saying  that  he  has  a  right 
to  services  from  his  tenant.  Of  him  as  well  as  of  his  tenant 
it  may  be  said  that  he  "  holds  "  the  land,  not  indeed  in 
demesne  but  in  service,  that  the  land  is  his  land  and  his  fee, 
and  even  that  he  is  seised,  that  is,  possessed  of  the  land. 
What  has  been  said  of  the  demesne  tenant's  immediate  lord 
may  be  said  also  of  that  lord's  lord ;  he  also  has  rights  in  the 
land  and  the  land  is  in  some  sort  his.  This,  when  regarded 
from  the  standpoint  of  modern  jurisprudence,  is  perhaps  the 
most  remarkable  characteristic  of  feudalism  :  several  differ- 
ent persons  in  somewhat  different  senses  may  be  said  to  have 
and  to  hold  the  same  piece  of  land.  We  have  further  to  con- 
ceive of  the  service  due  from  the  tenant  to  his  lord  as  being 
a  burden  on  the  tenement.  It  is  service  owed  by  the  tene- 
ment. This  idea  is  so  deeply  engrained  in  the  law  that  the 
tenement  is  often  spoken  of  as  though  it  were  a  person  who 
could  be  bound  by  obligations  and  perform  duties :  hides  and 
virgates  must  send  men  to  the  war,  must  reap  and  mow  and 
do  suit  of  court ;  "  these  two  half-hides  ought  to  carry  the 
king's  writs  whenever  they  come  into  the  country."1  But 
the  vast  liberty  that  men  have  enjoyed  of  creating  new  ten- 
ures and  sub-tenures  gives  us  wonderful  complications :  the 
obligation  of  the  tenement  has  to  be  kept  distinct  from  the 
obligation  of  the  tenant.  The  tenement  may  be  burdened 
with  military  service,  and  yet,  as  between  lord  and  tenant, 
the  lord  and  not  the  tenant  may  be  bound  to  do  it :  all  the 
same  the  land  itself  is  burdened  with  the  duty  and  the  lord's 
overlord  may  have  his  remedy  against  the  land. 

To  take  a  simple  case:  The  king  has  enfeoffed  A.  to  hold 

1  Testa  de  Neville,  71. 


FEUDAL    TENURE.  55 

by  military  service;  A.  can  now  proceed  to  enfeoff  B., 
.  .  .  and  may  enfeoff  B.  by  some  quite  other  service; 
B.  for  example  is  to  pay  A.  a  money  rent.  .  .  .  And 
then  if  B.  enfeoffs  C.,  the  problem  will  reappear  in  a  more 
complicated  shape ;  some  new  service  will  perhaps  be  created, 
for  instance,  C.,  who  is  a  parson,  is  to  pray  for  the  soul'of 
B.'s  ancestors ;  but  there  are  two  other  services  incumbent 
on  the  land,  the  rent  that  B.  owes  to  A.,  the  military 
service  that  A.  owes  to  the  king,  and  in  one  way  or  an- 
other those  services  must  be  provided  for.  As  between 
themselves,  B.  and  C.  can  settle  this  matter  by  the  terms  of 
their  bargain,  but  without  prejudice  to  the  rights  of  A.,  and 
of  the  king.  It  is  no  impossibility  that  Edward  should  hold 
in  villeinage  of  Ralph,  who  holds  in  free  socage  of  the  Prior 
of  Barnwell,  who  holds  in  frankalmoin  of  Earl  Alan,  who 
holds  by  knights  service  of  the  king.  Just  as  at  the  present 
day  one  and  the  same  acre  of  land  may  be  leasehold,  copy- 
hold, and  freehold — for  there  is  no  land  without  a  freeholder 
— so  in  the  past  one  and  the  same  acre  might  be  holden 
by  many  different  tenures.  It  owed  many  and  manifold 
services,  the  incidence  of  which,  as  between  its  various 
lords  and  tenants,  had  been  settled  by  complicated  bar- 
gaining. 

(b)  Descent. 

i  POLL.  &  MAIT.,  HIST.  ENG.  LAW,  213.  The  term 
feodum,  which  in  Anglo-French  is  represented  by  fe,  fie, 
fee  and  in  English  by  fee,  is  one  of  the  words  which  came 
in  with  the  conqueror,  and  perhaps  for  a  short  while  it 
carried  about  with  it  a  sense  of  military  or  noble  tenure; 
but  very  soon  it  was  so  widely  used  as  to  imply  no  more 
than  heritability.  This  is  its  settled  sense  in  the  thirteenth 
century.  To  say  of  a  tenant  that  he  holds  in  fee  (tenet 
in  feodo )  means  no  more  than  that  his  rights  are  inheritable. 
He  does  not  hold  for  life,  he  does  not  hold  for  a  term  of 
years,  he  does  not  hold  as  guardian  of  an  heir,  or  as  one  to 


56    READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

whom  the  land  has  been  gaged  as  security  for  money;  he 
holds  heritably  and  for  his  own  behoof.    .    .    . 

ID.,  288-293.  We  must  not  here  discuss  the  canons  of  in- 
heritance ;  it  will  be  sufficient  if  we  notice  a  few  salient  points. 
In  the  first  place,  the  "  heir  "  of  English  law  is  an  essentially 
different  person  from  the  Roman  "  heres  " — he  never  claims 
under  a  will.  With  few  exceptions,  the  broad  rule  holds 
good  that  no  one  can  give  rights  in  land  by  his  will,  and 
even  in  those  cases  in  which  such  rights  are  thus  given  the 
person  who  gets  them  does  not  get  them  as  "  heir."  Only 
God,  says  Glanvill,  can  make  an  heir,  not  man.1  A  distinc- 
tion between  land  and  movables  is  thus  established ;  even 
when  the  dead  man  has  not  bequeathed  his  movables,  the 
heir  as  such  has  no  claim  to  them.  In  the  second  place,  one 
main  rule  of  the  law  of  inheritance  is  the  primogenitary  rule 
— among  males  of  equal  degree  only  the  eldest  inherits.  This 
rule  has  been  gradually  extending  itself;  once  appropriate 
to  the  military  tenures,  it  is  becoming  the  common  law  for 
all.  Women  can  inherit  even  though  the  tenure  be  military ; 
they  are  postponed  to  males  of  equal  degree ;  several  women 
of  equal  degree  will  share  the  inheritance  between  them, 
will  be  coheiresses  (coheredes).  Lastly,  though  the  rights 
of  a  tenant  of  land  are  usually  heritable,  this  is  not  always 
the  case ;  A.  may  give  land  to  B.  merely  for  his  (B's  life ;  on 
the  death  of  this  tenant  for  life  there  will  be  nothing  for  his 
heir;  the  land  will  "  return  "  or  "  revert  "  to  A.  But  more, 
to  make  the  rights  of  the  donee  heritable  rights,  the  giver 
must  use  words  which  make  this  plain ;  if  he  merely  gives 
the  land  "  to  B.,"  then  B.  is  only  a  tenant  for  life ;  he  must 
give  it  "  to  B.  and  his  heirs."  But  the  heir,  whom  we  will 
suppose  to  be  of  full  age,  does  not  come  to  his  inheritance' 
without  having  to  pay  for  it ;  he  has  to  pay  to  his  lord — and 
this  is  what  concerns  us  here — a  relief  (relevium,  or  in  ear- 
lier documents  relevatio  or  relevamen).  .  .  . 

The  amount  of  the  due  relief  is  not  the  only,  perhaps  not 
the  most  important,  point  that  has  been  in  debate.   A  tenant 

1  Glanvill,  vii.,  i. 


FEUDAL    TENURE.  57 

dies ;  his  heir  was  living  in  the  same  house  with  him ;  or  his 
heir  was  not  living  on  the  tenement,  but  at  once  presents 
himself;  or  his  heir  has  gone  to  the  wars,  or  has  gone  on 
pilgrimage;  or  two  claimants  appear,  each  asserting  that 
he  is  heir;  or  a  stranger  intrudes  himself  into  the  tene- 
ment, setting  up  a  claim  as  heir,  or  relying  on  some  title  ad- 
verse to  the  ancestor,  or  on  his  strong  right  arm ;  what  in  all 
these  cases  are  the  rights  of  the  lord?  To  simplify  the 
question,  What  is  the  general  notion  of  the  lord's  right — is 
he  entitled  to  take  the  land  and  hold  it  until  the  true  heir 
asks  for  it,  does  homage  and  pays  relief,  or  is  he  only  en- 
titled to  receive  the  relief  having  no  concern  with  the  land? 
There  has  been  a  conflict  between  inconsistent  theories  rep- 
resenting inconsistent  interests.  Already  in  Glanvill's  day 
it  is  settled  that  if  the  heir  is  in  seisin  the  lord  may  not  turn 
him  out ;  the  heir  may  resist  the  lord.  Still  the  lord  is  en- 
titled to  a  certain  recognition  of  the  fact  that,  though  the 
tenement  belongs  to  the  tenant,  it  belongs  also  to  the  lord ;  he 
may  enter  and  go  through  the  ceremony  of  taking  seisin,  but 
he  must  do  no  damage.  Bracton  repeats  this :  in  the  case 
just  put  the  lord  may  have  "  a  simple  seisin  "  of  the  land 
which  does  not  disturb  the  heir's  seisin.  But  other  cases 
must  be  discussed ;  for  example,  at  the  ancestor's  death  the 
heir  may  be  absent,  the  tenement  left  vacant.  In  this  case 
the  lord  may  enter,  and  then  the  heir  when  he  appears  must 
not  oust  the  lord  by  force ;  if  he  does  so,  the  lord  will  have 
an  action  against  him  and  will  be  restored  to  possession.  So 
again,  if  there  are  two  rival  claimants  of  the  inheritance 
neither  of  whom  is  yet  in  possession,  the  lord  may  enter  and 
hold  the  land  until  one  of  the  two  has  proved  his  right.  We 
must  remember  that  if  no  heir  appears,  the  tenement  will  be- 
long to  the  lord  for  good  and  all ;  also  that  if  there  is  a  dis- 
pute between  several  would-be  heirs,  the  lord's  court  is,  at 
least  in  theory,  the  proper  tribunal  for  its  decision,  and  the 
lord  who  takes  homage  from  a  pretender  runs  great  risk  in 
so  doing;  he  may  have  to  warrant  that  pretender's  seisin, 
unless  he  has  been  careful  to  declare  that  the  homage  is  re- 


58    READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

ceived  without  prejudice  to  the  rights  of  other  claimants. 
A  conflict  between  two  sets  of  proprietary  rights,  those  of 
the  lord  and  those  of  the  tenant,  is  thus  complicated  by  the 
lord's  jurisdictional  powers.  In  the  struggle  which  pre- 
cedes the  Baron's  War  the  grievances  of  the  tenants  who 
stand  low  in  the  feudal  scale  become  audible ;  and  this  is 
one  chief  grievance — on  the  tenant's  death  the  lord  enters 
the  tenement  and  wastes  it;  the  heir  can  get  no  damages. 
An  attempt  to  redress  this  grievance  was  made  by  the  Pro- 
visions of  1259 ;  a  more  successful  attempt  by  the  statute  of 
1267 ;  the  heir  is  to  have  damages  if  the  lord  does  any  harm, 
for  if  the  heir  is  forthcoming  and  in  possession  of  the  land, 
the  lord  is  entitled  to  no  more  than  "  a  simple  "  or,  as  we 
should  say,  a  formal  "  seisin."  .  .  . 

We  are  thus  brought  within  seventy  years  of  the  Con- 
quest. As  to  what  had  happened  in  that  interval,  we  have 
two  emphatic  declarations.  Henry  I.  in  his  coronation  char- 
ter said :  "  When  any  of  my  barons,  earls,  or  others,  who 
hold  of  me  shall  die,  his  heir  shall  not  redeem,  or  buy  back 
(heres  suus  non  redimet}  his  land,  as  he  used  to  do  in  the 
time  of  my  brother,  but  shall  relieve  it  with  a  just  and  law- 
ful relief;  and  in  likewise  the  men  of  my  barons  shall  re- 
lieve their  lands  from  their  lords  by  a  just  and  lawful  relief." 
In  the  second  place,  the  chronicler  when  telling  how  Rufus 
kept  bishoprics  and  abbeys  vacant  and  made  profit  out  of 
their  temporalities,  adds  that  he  desired  to  be  the  heir  of 
every  man  in  England,  hallowed  or  lay.  We  see  then  that 
there  already  was  an  idea  of  a  just  and  lawful  relief,  that 
William  Rufus  had  exceeded  its  measure,  and  had  in  effect 
required  the  heir  to  purchase  his  ancestor's  land. 

LEAKE,  LAND  LAW,  31-33.  The  fee  or  feudal  estate  in 
the  land  appears  to  have  been  granted,  in  early  times,  for 
the  life  of  the  tenant  only,  the  land  reverting  to  the  lord 
upon  a  vacancy  by  death.  The  grant  was  afterwards  ex- 
tended to  the  sons  and  other  issue  of  the  tenant  under  the 
designation  of  heirs,  leaving  no  reversionary  interest  in 


FEUDAL   TENURE.  59 

the  lord  except  upon  the  failure  of  the  heirs  so  desig- 
nated. 

A  grant  extending  to  the  heirs  was  originally  confined 
to  the  issue  or  lineal  descendants  of  the  first  feudatory. 
Upon  his  death  without  issue,  his  brothers  and  other  col- 
lateral relations  acquired  no  claim  under  such  grant;  but 
upon  the  death  of  a  tenant  who  had  acquired  the  fee  as  heir, 
his  collateral  relations  might  succeed  as  being  heirs  «f  the 
original  feudatory.  In  the  former  case  the  fee  was  dis- 
tinguished as  feudum  novum;  and  in  the  latter,  as  feudum 
antiquum.  The  fee  might  be  enlarged  in  its  creation  to  all 
the  heirs,  collateral  as  well  as  lineal,  by  granting  the  feudum 
novum  expressly  to  be  held  ut  antiquum;  and  such  appears 
in  later  times  to  have  become  the  general  construction  of  a 
grant  even  without  that  express  addition;  at  least,  in  the 
English  common  law  a  grant  "  to  a  man  and  to  his  heirs  " 
simply,  was  construed  as  extending  to  the  heirs  general,  col- 
lateral as  well  as  lineal. 

This  extension  of  the  term  heirs  at  the  same  time  neces- 
sarily required  that  the  restriction  of  the  fee  to  the  lineal 
heirs,  if  intended,  should  be  expressed  in  terms ;  such  grants 
were  accordingly  made  with  the  limitation  "  to  the  heirs 
of  the  body."  Similarly,  the  grant  might  be  restricted  "  to 
the  heirs  male  of  the  body,"  or  to  the  heirs  by  a  certain  wife, 
or  to  other  restricted  lines  of  issue. 

The  heir  originally  derived  his  title  to  the  fee  from  the 
grantor  by  designation  in  the  grant,  per  fonnam  doni.  But 
as  the  tenant  acquired,  in  course  of  time,  the  power  of  alien- 
ating the  fee,  the  interest  of  the  heir  became  reduced  to  a 
mere  expectation  of  succeeding,  in  the  event  of  the  ancestor 
not  exercising  that  power.  The  additional  grant  "  to  the 
heirs  "  was  then  referred  wholly  to  the  estate  of  the  an- 
cestor, as  importing  merely  an  estate  of  inheritance,  an  es- 
sential incident  of  which  was  the  power  of  transferring  the 
land  to  another  for  a  like  estate ;  and  the  heir  no  longer 
claimed  as  grantee  by  designation  in  the  grant,  but  derived 
his  title  from  the  ancestor  by  descent. 


6O    READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

(c)  Alienation. 

MAGNA  CARTA  (1217),  c.  xxxix.  No  freeman  from 
henceforth  shall  give  or  sell  any  more  of  his  land,  but  so  that 
of  the  residue  of  the  lands  the  lord  of  the  fee  may  have  the 
service  due  to  him  which  belongeth  to  the  fee. 

c.  xliii.  It  shall  not  be  lawful  from  henceforth  to  any 
to  give  his  lands  to  any  religious  house,  and  to  take  the 
same  land  again,  to  hold  of  the  same  house.  Nor  shall  it  be 
lawful  to  any  house  of  religion  to  take  the  lands  of  any,  and 
to  lease  the  same  to  him  of  whom  they  were  received  to  be 
holden.  If  any  from  henceforth  so  give  his  lands  to  any 
religious  house,  and  thereupon  be  convict,  the  gift  shall 
be  utterly  void,  and  the  land  shall  accrue  to  the  lord  of 
the  fee. 

BRACTON,  45.  But  as  regards  the  power  of  the  donee  to 
make  a  gift  over  and  to  transfer  to  another  the  property 
granted  to  himself,  some  might  say  that  he  cannot  do  so, 
because  by  this  means  the  lord  loses  his  service;  this,  how- 
ever, is  not  true — with  all  respect  to  the  chief  lords  be  it 
said.  And  speaking  generally,  the  truth  is  that  the  donee 
may  grant  the  property  and  the  land  granted  to  him  to 
whomsoever  he  pleases,  unless  there  were  some  special  pro- 
vision against  alienation  at  the  time  of  the  feoffment.  For 
when  any  one  makes  a  gift  of  a  tenement,  he  gives  away 
an  ascertained  tenement  upon  condition  of  receiving  in  ex- 
change fixed  customs  and  fixed  services,  in  accordance  with 
what  has  been  said  above.  And  he  cannot  rightfully  claim 
anything  more  from  the  gift ;  let  him  therefore  take  what 
is  his  and  go  his  way.  .  .  .  Hence  when  any  chief  lord 
hinders  his  tenant  from  making  a  gift,  he  works  him  an 
injury  and  an  open  disseisin,  in  not  suffering  him  to  make 
use  of  his  own  property  and  his  own  seisin.  The  tenant, 
however,  by  such  a  gift  works  no  wrong  to  his  lord,  although 
he  does  him  harm ;  since  the  lord  may  have  his  relief  from 
the  feoffee  of  the  tenant,  and  although  the  tenant  may  do 


FEUDAL    TENURE.  6 1 

the  lord  harm,  yet  the  act  will  not  be  wrongful  for  the 
reason  aforesaid.    .    .    . 

If  my  tenant  makes  a  gift,  it  may  be  questioned  to  whom 
he  works  a  wrong ;  not  to  the  lord,  for  the  lord  has  all  that 
belongs  to  him ;  and  he  has  the  tenement  bound  and  burdened 
whatever  may  be  the  words  of  gift,  and  into  whosesoever 
hands  it  may  come.  Nor  does  the  feoffee  injure  the  lord's 
rights,  because  it  matters  nothing  to  the  chief  lord  who  holds 
his  fee,  since  the  actual  tenant  is  his  tenant,  although  there 
be  an  intermediate  lord.  Further  if  the  lord  allege  that  the 
tenant  has  wrongfully  entered  upon  his  fee,  I  say  it  is  not 
so,  because  the  fee  is  not  the  property  of  the  lord,  but  the 
tenant,  and  the  lord  has  nothing  in  the  fee  except  the  ser- 
vices due  to  him,  and  thus  the  fee  is  the  property  of  the  ten- 
ant, but  subject  to  services  to  the  lord ;  and  if  the  lord  pro- 
hibits the  tenant  from  doing  what  he  pleases  with  the  tene- 
ment which  he  holds  in  his  demesne,  this  will  be  an  entrance 
by  the  lord  upon  the  tenement  of  his  tenant,  and  will  work  a 
disseisin,  unless  any  other  consequence  follows  from  any 
condition  or  covenant  contained  in  the  gift  itself,  for  any  one 
can  annex  terms  and  conditions  to  his  gift,  and  thus  create 
a  rule  of  law  which  must  always  be  observed. 

STAT.  WESTM.  II.  (13  Edw.  I.,  1285),  Cap.  18.  When 
debt  is  recovered  or  knowledged  in  the  King's  Court,  or 
Damages  awarded,  it  shall  be  from  henceforth  in  the  Elec- 
tion of  him  that  sueth  for  such  Debt  or  Damages,  to  have  a 
Writ  of  Fieri  facias  unto  the  Sheriff  for  to  levy  the  Debt  of 
the  Lands  and  Goods ;  (2)  or  that  the  Sheriff  shall  deliver  to 
him  all  the  Chattels  of  the  Debtor  (saving  only  his  Oxen 
and  Beasts  of  his  Plough)  and  the  one  half  of  his  Land,  until 
the  Debt  be  levied  upon  a  reasonable  Price  or  Extent.  (3) 
And  if  he  be  put  out  of  that  Tenement,  he  shall  recover  by  a 
Writ  of  Novel  disseisin,  and  after  by  a  Writ  of  Redisseisin, 
if  need  be. 

STAT.  WESTM.  III.  (18  EDW.  I.,  1290),  QUIA  EMPTORES, 


62    READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

c.  I.  Forasmuch  as  purchasers  of  lands  and  tenements 
of  the  fees  of  great  men  and  other  lords  have  many  times 
heretofore  entered  into  their  fees,  to  the  prejudice  of  the 
lords,  to  whom  the  freeholders  of  such  great  men  have  sold 
their  lands  and  tenements  to  be  holden  in  fee  of  their  feof- 
fors  and  not  of  the  chief  lords  of  the  fees,  whereby  the  same 
chief  lords  have  many  times  lost  their  escheats,  marriages, 
and  wardships  of  lands  and  tenements  belonging  to  their  fees, 
which  thing  seems  very  hard  and  extreme  unto  those  lords 
and  other  great  men,  and  moreover  in  this  case  manifest 
disheritance :  our  lord  the  'King  in  his  parliament  at  West- 
minster after  Easter  the  eighteenth  year  of  his  reign,  that  is 
to  wit  in  the  quinzine  of  Saint  John  Baptist,  at  the  instance 
of  the  great  men  of  the  realm,  granted,  provided,  and  or- 
dained, that  from  henceforth  it  should  be  lawful  to  every 
freeman  to  sell  at  his  own  pleasure  his  lands  and  tenements 
or  part  of  them,  so  that  the  feoffee  shall  hold  the  same  lands 
or  tenements  of  the  chief  lord  of  the  same  fee,  by  such  ser- 
vice and  customs  as  his  feoffor  held  before. 

c.  ii.  And  if  he  sell  any  part  of  such  lands  or  tenements 
to  any,  the  feoffee  shall  immediately  hold  it  of  the  chief  lord, 
and  shall  be  forthwith  charged  with  the  services  for  so  much 
as  pertaineth  or  ought  to  pertain  to  the  said  chief  lord,  for 
the  same  parcel,  according  to  the  quantity  of  the  land  or 
tenement  so  sold;  and  so  in  this  case  the  same  part  of  the 
service  shall  remain  to  the  lord,  to  be  taken  by  the  hands  of 
the  feoffee,  for  the  which  he  ought  to  be  attendant  and 
answerable  to  the  same  chief  lord  according  to  the  quantity 
of  the  land  or  tenement  sold  for  the  parcel  of  the  service  so 
due. 

c.  iii.  And  it  is  to  be  understood  that  by  the  said  sales  or 
purchases  of  lands  or  tenements,  or  any  parcel  of  them,  such 
lands  or  tenements  shall  in  no  wise  come  into  mortmain, 
either  in  part  or  in  whole,  neither  by  policy  ne  craft,  con- 
trary to  the  form  of  the  statute  made  thereupon  of  late.  And 
it  is  to  wit  that  this  statute  extendeth  but  only  to  lands 
holden  in  fee  simple,  and  that  it  extendeth  to  the  time  com- 


FEUDAL   TENURE.  63 

ing.    And  it  shall  begin  to  take  effect  at  the  Feast  of  Saint 
Andrew  the  Apostle  next  coming. 


LIT.,  §  360.  Also,  if  a  feoffment  be  made  upon  this 
condition,  that  the  feoffee  shall  not  alien  the  land  to  any, 
this  condition  is  void,  because  when  a  man  is  infeoffed  of 
lands  or  tenements,  he  hath  power  to  alien  them  to  any  per- 
son by  the  law.  For  if  such  a  condition  should  bee  good, 
then  the  condition  should  oust  him  of  all  the  power  which 
the  law  gives  him,  which  should  bee  against  reason,  and 
therefore  such  a  condition  is  voide. 

Co.  LIT.,  223,  a.  And  the  like  law  is  of  a  devise  in  fee 
upon  condition  that  the  devisee  shall  not  alien,  the  condition 
is  voide,  and  so  it  is  of  a  grant,  release,  confirmation,  or  any 
other  conveyance  whereby  a  fee  simple  doth  passe.  For  it  is 
absurd  and  repugnant  to  reason  that  he  that  hath  no  possi- 
bility to  have  the  land  revert  to  him  should  restrain  his  feoffee 
in  fee  simple  of  all  his  power  to  alien.  And  so  it  is  if  a  man 
bee  possessed  of  a  lease  for  years,  or  of  a  horse,  or  of  any 
other  chattell  reall  or  personall,  and  give  or  sell  his  whole 
interest  or  propertie  therein  upon  condition  that  the  donee 
or  vendee  shal  not  alien  the  same,  the  same  is  void,  because 
his  whole  interest  and  propertie  is  out  of  him,  so  as  he  hath 
no  possibilitie  of  a  reverter,  and  it  is  against  trade  and  traf- 
fique,  and  bargaining  and  contracting  betweene  man  and 
man;  and  it  is  within  the  reason  of  our  author  that  it 
should  ouster  him  of  all  power  given  to  him.  Iniquunt 
est  ingenuis  hominibus  non  esse  liberam  rerum  suarum 
alienationem.  .  .  . 

A  man  before  the  statute  of  quia  emptores  terrarum  might 
have  made  a  feoffment  in  fee,  and  added  further,  that  if  he 
or  his  heires  did  alien  without  license,  that  he  should  pay  a 
fine,  then  this  had  been  good.  And  so  it  is  said,  that  the 
lord  might  have  restrained  the  alienation  of  his  tenant  by 
.condition,  because  the  lord  had  a  possibilitie  of  reverter; 


64    READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

and  so  it  is  in  the  king's  case  at  this  day,  because  he  may 
reserve  a  tenure  to  himselfe. 

DIGBY,  HIST.  REAL  PROP.,  Ch.  III.,  §  14.  It  appears  that 
about  the  time  of  the  passing  of  the  provisions  quoted  above 
from  Magna  Carta,  strenuous  attempts  were  made  in  the  in- 
terest of  the  great  lords  to  prevent  a  tenant  alienating  any  part 
of  his  land.  These  attempts,  however,  were  not  successful. 
The  provision  in  Magna  Carta  given  above  appears  to  be  the 
only  restraint  upon  alienation  of  lands  in  fee  simple  ever  rec- 
ognized by  law  in  the  interests  of  the  lord.  When  lands  were 
held  of  a  mesne  lord,  the  effect  of  this  provision  seems  to 
have  been  that  if  the  lands  were  alienated  contrary  to  the 
statute  the  heir  of  the  alienor  might  enter  upon  the  alienee 
and  defeat  his  estate.  This  it  was  hoped  would  prevent 
alienations  of  portions  of  the  land  to  the  damage  of  the 
interests  of  the  lord.  The  law  as  to  alienation  in  the  case 
of  lands  held  immediately  of  the  king  was  different.  The 
subject  is  very  obscure,  but  it  appears  probable,  as  is  asserted 
by  Sir  E.  Coke  in  his  notes  on  the  passage  of  Magna  Carta, 
that  before  the  reign  of  Henry  III.  there  was  no  greater 
restraint  on  the  alienation  of  lands  held  in  fee  of  the  Crown 
than  in  the  case  of  lands  held  of  a  mesne  lord ;  that  about 
this  time  it  was  established  (whether  by  this  provision  of 
Magna  Carta,  as  Sir  E.  Coke  thinks,  or  not,  is  doubtful) 
that  the  lands  held  immediately  of  the  king  could  not  be 
alienated  without  incurring  liability  to  a  fine  for  a  license  of 
alienation.  It  continued  for  a  long  time  to  be  a  question 
whether  such  an  alienation  of  lands  without  license  was  a 
cause  of  forfeiture  to  the  Crown,  or  whether  the  king  could 
only  distrain  for  the  fine.  This  doubt  was  set  at  rest  by 
i  Edward  III.,  stat.  2,  c.  12,  by  which  it  was  provided  that 
an  alienation  without  license  of  lands  held  of  the  king  in 
chief  should  not  be  a  cause  of  forfeiture,  but  a  reasonable 
fine  should  be  taken  in  the  Chancery  by  due  process.  Hence- 
forth for  a  license  of  alienation  by  a  tenant  in  capite  the 
king  was  held  to  be  entitled  to  a  third  part  of  the  yearly 


FEUDAL    TENURE.  6$ 

vafue  of  the  land,  and  for  a  fine  upon  alienation  without 
license  to  one  year's  value.  These  fines  upon  alienation 
were  abolished  by  12  Car.  II.,  c.  24. 

ID.,  Ch.  IV.,  §  2.  It  appears  that  the  provision  in 
Magna  Carta,1  was  construed  as  an  absolute  prohibition 
against  granting  lands  to  religious  houses.  The  prohibi- 
tion is  now  extended  so  as  to  prevent  any  alienation 
of  lands  "  per  quod  ad  manum  mortuam  deveniant."  Lands 
were  said  to  come  into  a  "  dead  hand  "  when  they  were  held 
not  by  an  individual  tenant,  but  by  a  corporation  or  body. 
This  expression  was  probably  first  applied  to  the  holding  of 
lands  by  religious  bodies  or  persons  who,  being  "  professed," 
were  reckoned  dead  persons  in  law.  It  then  came  to  be  ap- 
plied to  the  holding  of  lands  by  corporations  as  opposed  to 
individuals,  whether  the  corporation  were  ecclesiastical  or 
lay,  sole  or  aggregate.  .  .  . 

Several  exceptions  have  been  introduced  in  favor  of  par- 
ticular corporations  or  classes  of  corporations  by  Act  of 
Parliament,  as,  for  instance,  the  Universities  and  Colleges 
of  Oxford  and  Cambridge,  limited  companies,  and  many 
others.  When,  however,  no  license  has  been  obtained  from 
the  Crown  or  been  conferred  by  Act  of  Parliament,  the  old 
rule  of  law  still  prevails. 

ID.,  Ch.  IV.,  §  5.  It  seems  that  before  the  passing  of 
this  statute  [Qnia  Emptores],  where  A.  held  land  in  fee 
simple  of  B.,  A.  might  have  granted  to  C.  the  whole  of  those, 
lands  to  be  held  of  B. ;  and  such  a  grant  would  operate  to 
create  a  tenancy  between  C.  and  B.  This  relation,  however, 
could  not  at  the  common  law  (that  is,  independently  of  the 
statute  presently  to  be  mentioned)  have  been  effected  by 
a  grant  by  A.  to  C.  of  part  of  the  lands  held  by  A.  At  com- 
mon law,  a  feoffment  made  by  A.  to  C.  of  a  portion  of  his 
lands  would  in  every  case  have  created  anew  the  relation  of 
lord  and  tenant,  with  all  the  incidents  attaching  to  that 
relation,  as  between  A.  and  C.  In  this  case  there  would  be 
no  immediate  relation  of  lord  and  tenant  between  the  chief 
'Cap.  43,  ed.  1217  ;  page  61,  supra. — ED. 


66    READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

lord  and  C.  The  advantageous  rights  of  the  lord  over  the 
land  would  consequently  be  diminished.  The  land  thus 
aliened  would  not  escheat  to  the  chief  lord  on  the  failure  of 
the  heirs  of  the  alienee,  nor  would  the  lord  be  the  guardian 
of  the  lands  or  of  the  body  of  the  heir. 

To  preserve  these  rights  it  was  in  the  eighteenth  year  of 
Edward  I.  enacted  that  every  alienation  in  fee  simple, 
whether  of  the  whole  or  of  a  part  of  the  land,  should  have 
the  effect  of  substituting  the  alienee  for  the  alienor  in  rela- 
tion to  the  chief  lord ;  the  alienee  simply  stepping  into  the 
place  of  the  alienor,  and  being  subject  to  all  the  duties  and 
obligations  under  which  he  held  the  land  of  his  lord.  The 
primary  object  of  this  enactment  was  to  prevent  the  loss 
arising  to  the  lords  of  manors  from  subinfeudation,  or  sub- 
division of  the  tenements  held  of  them.  Consequently,  when- 
ever at  the  present  day  a  freehold  tenant  in  fee  simple  holds 
of  a  mesne  lord,  the  separation  of  the  freehold  from  the  do- 
main must  have  occurred  at  a  date  anterior  to  the  eighteenth 
year  of  Edward  I.  From  this  time  forward  every  alienation 
of  land  in  fee  simple  presents  the  characteristics  of  a  com- 
plete out-and-out  transfer,  the  transferee  stepping  for  all 
purposes  into  the  place  of  the  transferor.  Gradually  by 
successive  alienations  the  tie  between  the  chief  lord  and  the 
freeholder  becomes  weakened.  In  socage  tenure,  when  no 
rent  was  payable  and  no  value  attached  to  the  service,  there 
was  no  motive  for  keeping  up  the  empty  ceremony  of  fealty, 
and  thus  in  many  cases  the  relation  of  lord  and  tenant  be- 
came altogether  obliterated.  Finally,  when  all  the  valuable 
incidents  attaching  to  knight-service  were  abolished,  and 
the  tenure  itself  converted  into  socage  by  the  Statute  of 
Charles  (12  Car.  II.,  c.  24),  the  relation  between  the  free- 
holder and  his  lord  fell  into  abeyance,  and  the  freeholder 
became  for  all  practical  purposes  owner  of  the  soil.  Thus  at 
the  present  day  in  the  great  majority  of  cases  no  intermedi- 
ate lord  is  recognized  between  the  freeholder  and  the  Crown, 
except  where  the  freehold  is  within  the  known  precincts  of 
a  manor,  and  the  relation  between  the  freeholder  and  the 


"  FEUDAL   TENURE.  67 

lord  of  the  manor  has  been  kept  up  by  the  recognition  of 
mutual  rights  and  duties,  such  as  payment  of  rent,  or  render- 
ing heriots  or  other  duties  to  the  lord. 

LEAKE,  LAND  LAW,  19.  Before  the  statute  the  tenant, 
though  he  might  by  subinfeudation  have  created  a  new  ten- 
ure of  himself  as  lord,  could  not  transfer  or  get  rid  of  his 
own  tenure,  with  its  attendant  duties  and  services,  without 
the  license  of  the  lord.  The  statute,  while  disabling  him 
from  sub-infeudation,  enabled  him  freely  and  without 
license  to  alien  his  own  tenure. 

The  statute  extends  only  to  the  sale  or  alienation  of  the 
entire  fee  or  estate  in  the  land.  By  aliening  the  land  for  a 
partial  or  less  estate,  reserving  the  ulterior  estate  in  the  fee, 
a  species  of  sub-tenure  or  imperfect  tenure  might  still  be 
created. 


68    READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 


CHAPTER  III. 

MANORS. 

DIGBY,  HIST.  REAL  PROP.,  Ch.  I.,  sec.  IL,  §  3.  It  has 
been  said  that  before  the  Conquest  large  districts  of  land 
were  held  by  persons  or  corporations,  the  dwellers  upon 
which,  holding  beneficially  plots  of  land,  usually  of  small 
size,  were  bound  to  render  services,  either  in  money,  kind, 
or  labor,  to  the  lord  or  supreme  landowner  of  the  district. 
The  probable  connection  of  these  districts  with  the  Teutonic 
mark  has  already  been  alluded  to.1  It  is  probable  that  the 
Conquest  wrought  but  little  immediate  change  in  the  rela- 
tion of  such  persons  to  their  lord.  A  Norman  lord  might  be 
substituted  for  a  Saxon,  but  the  dues  and  services  would 
substantially  continue  the  same.  We  now  find  that  these 
districts  receive  the  name  maneria,  or  manors.  In  Domes- 
day the  words  mansio,  villa,  manerium  are  synonymous. 
After  the  Conquest  England  is  parcelled  out  into  manors 
varying  greatly  in  size ;  having  as  a  rule  fixed  boundaries, 
often  coinciding,  as  is  still  the  case  at  the  present  day,  with 
the  boundaries  of  the  parish.  In  some  cases  manors  were 
diminished  or  added  to,  and  new  manors  created.  Prob- 
ably, however,  there  was  no  great  addition  after  the  Con- 
quest to  the  number  of  manors. 

It  has  already  been  seen  that,  although  the  word  "  manor  " 
is  of  Norman  introduction,  substantially  the  relation  of  lord 
of  a  manor  and  his  tenants  existed  before  the  Conquest.  It 
is  probable,  howeve^r,  that  the  idea  of  the  legal  relation  be- 
tween the  lord  and  the  smaller  holders  of  land  within  the 
manor  received  more  exact  definition  at  the  hands  of  Nor- 
man lawyers  and  justices.  The  lord  is  regarded  in  his  rela- 
tion to  those  below  him  as  lord  of  the  soil ;  in  relation  to  the 
1  Ch  I  .  sec.  i.,  §  i. 


MANORS.  69 

king  or  superior  lord  he  is  regarded  as  tenant.  He  stands 
in  the  same  relation  to  the  land  of  the  district  as  the  king 
fills  in  relation  to  the  land  of  the  whole  country.  Prima 
facie  all  rights  over  the  land  within  the  district  which  are  not 
claimed  by  any  individual  are  regarded  as  vested  in  the  lord. 
The  freeholders  of  land  become  his  tenants ;  he  is  not  only 
lord  of  his  men,  but  lord  of  the  land,  he  is  entitled  to  escheat 
on  failure  of  the  tenants'  heirs,  the  rights  of  pasturage  on 
the  unoccupied  lands  enjoyed  by  the  inhabitants  of  the  dis- 
trict come  to  be  regarded  as  jura  in  alieno  solo — rights  ex- 
ercised over  the  land  the  ownership  of  which  is  vested  in 
the  lord.  It  must  be  remembered  that  the  king  is  not  only 
the  supreme,  but  the  largest  landowner  in  the  country.  He 
is  lord  of  many  manors  in  various  districts.  What  is  said 
therefore  of  the  relation  of  tenants  to  their  lords  must  be 
understood  to  apply  also  to  the  king  when  he  is  lord  of  the 
manor. 

The  holders  of  land  within  the  manor  may,  for  the  pur- 
poses of  legal  history,  be  conveniently  divided  into  the  fol- 
lowing classes :  First,  the  tenants  in  knight-service  or  in 
chivalry,  whose  tenure  must,  if  the  views  above  stated  be 
correct,  have  originated  since  the  Conquest  by  grant,  or 
commendation  involving  a  regrant.  .  .  .  Secondly,  there 
are  the  freemen,  bound  to  render  service,  other  than  military 
service,  in  money,  produce,  attendance  at  the  lord's  court, 
or  labor ;  or  rather,  as  they  would  be  called  after  the  Con- 
quest, free  tenants  holding  by  such  services.  In  Domesday 
we  find  these  tenants  spoken  of  as  sochemanni,  socmanni,  or 
liberi  socmanni.  The  services  to  which  they  were  bound 
seem  to  have  been  usually  fixed  or  certain,  and  not  capable 
of  being  exacted  arbitrarily  by  the  lord,  such  as  the  render- 
ing of  a  certain  amount  of  agricultural  service,  or  paying  a. 
fixed  rent  in  money  or  produce.  Sometimes  a  free  tenant, 
would  only  be  bound  by  the  oath  of  fealty.  It  seems  that: 
in  fact  the  line  between  the  services  rendered  by  free  ten- 
ants and  by  the  non-free  was  in  many  cases  not  clearly 
marked.  They  were  doubtless  regulated  by  local  customs, 


7O    READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

and  in  some  cases  free  men  would  be  bound  to  render  base 
services.  The  important  thing  was  the  status  of  the  person 
rendering  the  services,  not  the  service  rendered.  In  process 
of  time  the  nature  of  the  services  rendered,  especially  the 
characteristic  of  fixity  or  certainty,  came  to  be  regarded  as 
the  mark  of  a  distinct  species  of  freehold  tenure  called  free 
socage.  .  .  . 

Tenants  of  land  holding  by  any  one  of  the  above-men- 
tioned tenures — libera  eleemosyna  or  frankalmoign,  grand 
serjeanty,  knight-service,  socage,  burgage,  and  petit  ser- 
jeanty — were  regarded  as  freeholders  having  an  estate  or 
interest  in  lands  worthy  of  a  freeman,  and  involving  no  ser- 
vice derogatory  to  the  status  of  freedom.  Some  time  before 
the  reign  of  Henry  II.,  but  apparently  not  so  early  as  Domes- 
day, the  expression  liberum  tenementum  was  introduced  to 
designate  land  held  by  a  freeman  by  a  free  tenure.  Thus 
freehold  tenure  is  the  sum  of  the  rights  and  duties  which 
constitute  the  relation  of  a  free  tenant  to  his  lord.  .  .  .. 

Besides  the  lands  of  the  manor  held  by  free  or  freehold 
tenants,  the  lord  retained  in  his  own  hands  the  domain — 
terrae  dominicales — portions  of  which  were  sometimes  let 
to  farmers,  and  portions  cultivated  by  persons  bound  to  ren- 
der agricultural  services  for  the  benefit  of  the  lord.  The 
Domesday  of  St.  Paul's  leaves  little  doubt  that  there  were 
frequently,  especially  upon  ecclesiastical  lands,  farmers 
holding  land  under  conventions  or  covenants,  and  rendering 
for  it  rent  in  kind  or  money.  These  would  probably  differ 
from  the  tenants  in  socage,  for  they  would  not  be  bound  to 
the  lord  by  homage  or  fealty ;  they  would  simply  hold  under 
the  covenant  or  lease.  Specimens  of  these  leases  are  given 
in  the  Domesday  of  St.  Paul's ;  they  are  usually  for  the  life 
of  the  tenant.  The  convention  was  merely  binding  as 
between  the  tenant  and  the  lord,  it  created  no  estate  as  be- 
tween the  tenant  and  third  persons.  In  later  times  a  lease 
of  land  for  life  becomes  a  freehold  interest  held  by  socage 
or  other  tenure ;  a  lease  for  years  becomes  a  new  species  of 
rights  over  land,  called  leasehold  interests  or  chattels  real. 


MANORS.  71 

Besides  these  there  are  the  non-free  inhabitants,  a  large 
and  important  class,  by  whose  forced  service  the  domain  of 
the  lord — that  is,  the  land  not  held  of  him  by  freemen  ren- 
dering free  services,  or  by  farmers,  was  mainly  cultivated. 
We  find  a  variety  of  names  applied  in  Domesday  to  this 
servile  peasantry  (e.g.,  villani,  nativi,  custumarii,  servi, 
cotarii,  bordarii) .  .  .  .  These  non-free  inhabitants  were 
adscripti  glebae,  tied  to  the  land;  they  could  not  remove 
from  one  manor  to  another.  They  seem  to  have  held  plots 
of  land  of  considerable  extent,  and  the  very  fact  of  their 
not  being  removable,  of  son  succeeding  father  in  the  occupa- 
tion of  his  plot,  and  in  the  obligation  to  render  services,  no 
doubt  gave  rise  to  various  customs,  or  helped  to  preserve 
customs  already  in  existence,  such  as  allowing  the  tenant's 
eldest  or  youngest  son,  or  all  his  sons  in  equal  shares,  to 
succeed  to  the  father's  beneficial  interests  (usually  on  mak- 
ing some  payment  to  the  lord),  recognizing  estates  of  in- 
heritance, for  life  or  years,  allowing  the  tenant  to  feed  his 
cattle  on  the  waste,  and  the  like.  These  customs  virtually 
gave  the  non-free  tenant  rights  and  duties  in  relation  to  his 
lord,  and,  as  will  be  seen,  grew  into  local  laws.  If  the  ten- 
ant could  not  depart  from  the  land,  no  more  could  the  lord 
remove  him  so  long  as  he  rendered  the  service  due  to  the 
lord.  There  would  be  little  distinction  between  the  lowest 
class  of  freemen  and  the  highest  class  of  the  non-free;  the 
one  would  gradually  pass  into  the  other.  Freemen  some- 
times held  lands  by  villein  services.  This  relation  of  the 
non-free  inhabitants  to  the  land  gradually  passes  into  an  in- 
terest recognized  by  custom  under  the  name  of  villenagium, 
and  finally  into  a  tenure  protected  by  law  under  the  name  of 
copyhold  or  customary  tenure. 

Such  were  the  various  phases  of  the  relation  of  lord  and 
tenant  which  took  root  in  the  interval  between  the  Conquest 
and  the  reign  of  Henry  II.  It  remains  to  notice  what  has 
from  the  date  of  the  complete  constitution  of  manors  been 
their  most  important  characteristic — the  manorial  courts. 
When  a  large  district  comprising  several  manors  was  held 


72    READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

by  a  single  lord  in  whom  was  vested  by  grant  or  long  usage 
the  complete  jurisdiction  of  the  hundred,  the  district  was 
called  a  liberty  or  honour.  In  such  a  case,  there  might  be, 
and  usually  was,  only  one  court  held  for  the  whole ;  but  that 
court  was  regarded  as  the  court  of  each  several  manor.  The 
honour  is  merely  the  aggregate  of  several  manors,  it  has  no 
distinct  or  separate  organization.  It  is  therefore  only  nec- 
essary to  inquire  into  the  constitution  and  nature  of  the 
manor  courts. 

The  principal  manorial  court  is  the  Court  Baron,  or  the 
assembly  of  the  freehold  tenants  of  the  lord.  Besides  the 
Court  Baron,  in  many  manors  there  is  also  a  Court  Leet, 
which  is  sometimes  held  with  the  Court  Baron ;  and  where- 
ever,  as  is  usually  the  case  at  the  present  day,  there  are  copy- 
holders within  the  manor,  there  is  also  a  third  court,  called 
the  Customary  Court.  This  court,  too,  is  often  held  with  a 
Court  Baron.  It  is,  however,  probable  that  this  classifica- 
tion is  due  to  the  lawyers  of  the  thirteenth  or  fourteenth 
century,  and  that  in  early  times  no  distinction  between  the 
different  courts  was  recognized.  "  A  Court  Baron,"  says 
Sir  Edward  Coke,  "  is  the  chief  prop  and  pillar  of  a  manor, 
which  no  sooner  faileth,  but  the  manor  falleth  to  the 
ground."1 

The  manor  courts  therefore  may  be  regarded  as  repre- 
senting one  side  of  the  old  assembly  of  the  township,  in 
which  the  jurisdiction  properly  belonging  to  the  hundred 
court  has  come  to  be  vested.  The  constitution  of  the  Court 
Baron  is  consistent  with  this  view.  The  freemen,  or  rather, 
as  they  have  now  come  to  be,  the  freehold  tenants  of  the 
manor,  are  the  judges  of  the  court;  the  lord  or  his  steward 
is  simply  the  president.  Thus  the  continuance  of  a  sufficient 
number  of  freehold  tenants  within  the  manor  is  essential  to 
the  maintenance  of  the  Court  Baron,  and  so  to  the  continu- 
ance of  the  manor  itself.  The  functions  of  this  court  were 
partly  administrative,  partly  judicial.  The  business  relating 
to  the  interests  of  the  various  dwellers  within  the  manor 

1  Coke,  Copyholder,  xxxi. 


MANORS.  73 

was  here  transacted';  probably  in  some  manors  the  customs 
of  the  manor  would  from  time  to  time  be  declared  in  this 
court,  grants  of  the  waste  sanctioned,  rights  of  common 
regulated.  The  judicial  functions  of  this  court  varied  in 
different  manors.  The  Court  Leet,  held  either  separately  or 
in  conjunction  with  the  Court  Baron,  had  jurisdiction  over 
crimes  committed  within  the  manor,  and  the  Court  Baron 
over  civil  suits  arising  within  the  same  limits,  especially 
over  all  matters  relating  to  the  freehold.  This  jurisdiction, 
however,  was  gradually  curtailed  and  overridden  by  the 
judicial  organization  carried  into  effect  by  Henry  II. 

ID.,  Ch.  II.  It  is  to  the  organization  of  the  judicial  in- 
stitutions of  the  country  that  the  rapid  development  of  the 
Common  Law  relating  to  land  which  took  place  in  the  inter- 
val between  the  beginning  of  the  reign  of  Henry  II.  and  the 
end  of  that  of  Henry  III.  is  owing.  It  has  been  seen,  in  the 
preceding  chapter,  that  in  the  various  manors  the  manor 
court  had  jurisdiction  over  questions  arising  within  the 
manor.  But  supreme  over  all  was  the  King's  Court  (Curia 
Regis),  which  partook  of  the  character  of  the  supreme  Court 
Baron,  and  was  also  the  chief  national  legislative  and  judicial 
institution  of  the  country.1  The  king,  in  his  combined  capac- 
ity of  sovereign  of  the  nation  and  lord  paramount  of  all  the 
land,  asserted  his  right  to  adjudicate  by  himself  or  his  repre- 
sentatives upon  all  questions  relating  to  the  freehold,  and  to 
control  the  local  jurisdictions  of  the  lords  of  the  manors. 
The  jurisdiction  of  the  royal  or  central  court  was  exercised 
partly  at  Westminster  or  elsewhere,  where  the  king's  cotirt 
happened  to  be  in  attendance  upon  the  king's  person,  partly 
by  the  organization  of  itinera  or  progresses  by  members  of 
the  Curia  Regis  for  judicial  and  other  purposes  throughout 
the  country. 

'As  to  the  Curia  Regis,  see  Stubbs,  Select  Charters,  pp.  22,  131  anri 
141,  and  Const.  Hist.,  i.,  pp.  598-604. 


CHAPTER  IV. 

SEISIN. 

LIT.,  §  324.  Also,  when  a  man  will  shew  a  feoffement 
made  to  him,  or  a  gift  in  taile,  or  a  lease  for  life  of  any  lands 
or  tenements,  ther  he  shal  say,  by  force  of  which  feoffement, 
gift,  or  lease,  he  was  seised,  &c.,  but  where  one  will  plead  a 
lease  or  grant  made  to  him  of  a  chatell  real  or  personal,  ther 
he  shal  say,  by  force  of  which  he  was  possessed,  &c. 

Co.  LIT.,  153,  a.  "  Seisin,"  or  seison,  is  common  aswel 
to  the  English,  as  to  the  French,  and  signifies  in  the  com- 
mon law  possession,  whereof  seisina,  a  Latin  word,  is  made, 
and  seisire,  a  verbe. 

ID.,  200,  b.  Seisin  is  a  word  of  art,  and  in  pleading  is 
onely  applied  to  a  freehold  at  least,  as  possesse  for  distinc- 
tion sake  is  to  a  chattell  reall  or  personall.  As  if  B.  plead  a 
feoffement  in  fee,  he  concludeth,  virtute  cujus  praedict.  B. 
fuit  seisitns,  &c.  But  if  he  plead  a  lease  for  yeares,  he 
pleadeth,  virtute  cujus  praedictits  B.  intraznt,  et  fuit  inde 
possessionatus;  and  so  of  chattells  personalls,  virtute  cujus 
fuit  inde  possessionatus. 

And  this  holdeth  not  only  in  case  of  lands  or  tenements 
which  lie  in  liverie,  but  also  of  rents,  advowsons,  commons, 
&c.,  and  other  things  that  lie  in  grant,  whereof  a  man  hath 
an  estate  for  life  or  inheritance. 

Also  when  a  man  .pleads  a  lease  for  life,  or  any  higher 
estate  which  passeth  by  liverie,  he  is  not  to  plead  any  entrie, 
for  he  is  in  actuall  seisin  by  the  liverie  itselfe.  Otherwise  it 
is  of  a  lease  for  yeares,  because  there  he  is  not  actually  pos- 
sessed untill  an  entrie. 

ID.,   266,    b.     Seisin   is   a   technical   term   denoting   the 


SEISIN.  75 

completion  of  that  investiture  by  which  the  tenant  was  ad- 
mitted into  the  tenure,  and  without  which  no  freehold  could 
be  constituted  or  pass.  It  is  a  word  common  as  well  to  the 
French  as  to  the  English  law.  It  is  either  in  deed,  which  is, 
when  the  person  has  the  actual  seisin  or  possession;  or  in 
law,  when  after  a  descent  the  person  on  whom  the  lands  de- 
scend has  not  actually  entered  and  the  possession  continues 
vacant,  not  being  usurped  by  another.  When  lands  of  in- 
heritance are  carved  into  different  estates,  the  tenant  of  the 
freehold  in  possession,  and  the  persons  in  remainder  or  re- 
version, are  equally  in  the  seisin  of  the  fee.  But  in  opposi- 
tion to  what  may  be  termed  the  expectant  nature  of  the  seis- 
in of  those  in  remainder  or  reversion,  the  tenant  in  posses- 
sion is  said  to  have  the  actual  seisin  of  the  lands.  The  fee 
is  entrusted  to  him.  By  any  act  which  amounts  to  a  dis- 
affirmance  by  him  of  the  title  of  those  in  the  reversion,  he 
forfeits  his  estate,  and  any  act  of  a  stranger  which  disturbs 
his  estate  is  a  disturbance  of  the  whole  fee.  Disseisin  seems 
to  imply  the  turning  the  tenant  out  of  his  fee,  and  usurping 
his  place  and  relation. — Butler's  note,  217. 

POLL.  &  W.,  POSSESSION,  47-49.  Possession  of  land  is  of 
two  kinds.  Seisin  signifies  in  the  common  law  possession, 
but  one  cannot  be  seised,  in  the  language  of  modern  lawyers, 
as  of  any  interest  less  than  freehold. 

Where  a  tenant  occupies  a  close  under  a  lease  for  years, 
the  tenant  has  possession  of  the  close,  so  that  not  only  a 
stranger,  but  the  freeholder  himself,  may  be  guilty  of  a  tres- 
pass against  him,  but  the  freeholder  is  still  seised,  or,  as  the 
judges  could  say  as  late  as  1490,  possessed,  of  the  freehold. 
The  fundamental  maxim  that  there  cannot  be  two  posses- 
sions of  the  same  thing  at  the  same  time  is  evaded,  success- 
fully or  not,  by  treating  the  land  itself  and  the  reversion  as 
different  things.  Mr.  F.  W.  Maitland's  research  has  thrown 
much  light  on  this  curious  compromise  between  incompatible 
ideas.  He  has  shown  by  abundant  examples  that  in  the  thir- 
teenth century  seisin  and  possession  were  absolutely  synony- 


76    READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

mous  terms,  and  that  as  late  as  the  fifteenth  century  seisin 
of  chattels  was  commonly  spoken  of  in  pleading.  But  as 
early  as  the  thirteenth  century  the  introduction  of  tenant- 
farming  raised  for  thinking  English  lawyers  the  question 
who  had  possession,  the  landlord  or  the  tenant.  Bracton, 
following  Roman  authority  and  the  Roman  distinction  be- 
tween possidere,  i.e.,  possession  in  law,  and  in  possession? 
esse,  i.e.,  physical  possession,  in  one  passage  boldly  said  of 
the  tenant-farmer  "  talis  non  possidet  licet  fuerit  in  seisina ;  " 
he  is  like  a  bailiff  or  servant.  But  in  another  passage,  which 
is  followed  by  Fleta,  we  find  the  theory  of  a  double  seisin : 
"  poterit  enim  quilibet  illorum  sine  praeiudicio  alterius  in 
seisina  esse  eiusdem  tenementi,  unus  ut  de  termino  et  alius  ut 
de  feodo  vel  libero  tenemento."  ...  In  any  case,  prac- 
tical need  carried  the  day.  It  would  not  do  to  say  that  the 
freeholder  had  parted  with  his  seisin,  for  that  would  have 
cut  him  off  from  using  in  support  of  his  title  the  convenient 
possessory  remedies  given  by  the  assize  of  novel  disseisin 
and  other  actions  of  the  same  class.  According  to  the  later 
authorities,  though  a  man  who  has  made  a  lease  for  years 
"  cannot  of  right  meddle  with  the  demesne  nor  the  fruits 
thereof,"  he  may  have  an  assize  if  the  termor  is  ejected,  and 
may  plead  that  he  was  seised  in  his  demesne  as  of  fee.  It 
would  not  do  to  say  that  the  farmer  had  no  possession,  for 
he,  too,  must  have  an  effectual  remedy  against  intruders ;  if 
he  is  not  exactly  disseised  when  he  is  disturbed  without 
right  it  is  somethnig  very  like  it.  ...  Thus  it  was  set- 
tled that  the  lessee  had  a  kind  of  seisin  and  yet  the  lessor 
did  not  lose  the  seisin  which  he  had  before.  It  must  be  re- 
membered that  gradations  of  freehold  tenure  had  already 
made  men  familiar  with  the  conception  of  the  lord  being 
seised  of  rent  and  service  while  the  tenant  was  seised  of  the 
land  itself.  Not  before  Littleton's  time  (if  so  early)  it  be- 
came the  usage  to  confine  the  term  seisin  to  estates  of  free- 
hold ;  and  accordingly  we  have  a  double  terminology,  cor- 
responding to  a  double  set  of  rights,  and  (so  long  as  the 
real  actions  were  in  practical  use)  also  of  remedies. 


SEISIN.  77 

2  POLL.  &  MAIT.,  HIST.  ENG.  LAW,  29.  In  the  history  of 
our  law  there  is  no  idea  more  cardinal  than  that  of  seisin. 
Even  in  the  law  of  the  present  day  it  plays  a  part  which 
must  be  studied  by  every  lawyer;  but  in  the  past  it  was  so 
important  that  we  may  almost  say  that  the  whole  system  of 
our  land  law  was  law  about  seisin  and  its  consequences. 

ID.,  39.  On  the  whole  we  may  say  that  the  possession  of 
land  which  the  law  protects  under  the  name  of  a  "  seisin  of 
freehold  "  is  the  occupation  of  land  by  one  who  has  come 
to  it  otherwise  than  as  tenant  in  villeinage1,  tenant  at  will, 
tenant  for  term  of  years  or  guardian,  that  occupation  being 
exercised  by  himself,  his  servants,  guardians,  tenants  in  vil- 
leinage, tenants  at  will,  or  tenants  for  term  of  years.  This 
seems  the  best  statement  of  the  matter — occupation  of  land 
is  seisin  of  free  tenement  unless  it  has  been  obtained  in  one 
of  certain  particular  ways.  If,  however,  we  prefer  to  look  at 
the  other  side  of  the  principle,  we  may  say  that  the  animus 
required  of  the  person  who  is  "  seised  of  free  tenement  "  is 
the  intent  to  hold  that  land  as  though  he  were  tenant  for 
life  or  tenant  in  fee  holding  by  some  free  tenure. 


//.    The  Feudal  Tenures. 

CHAPTER  I. 

THE  FREEHOLD  TENURES. 

BRACTON,  207.  Mention  is  sometimes  made  of  a  free  tene- 
ment by  way  of  distinction  from  that  which  is  held  in  vil- 
leinage, for  of  tenements  some  are  free  and  some  are  villein 
tenements. 

Also  of  free  tenements  some  are  held  freely  by  homage 
and  military  service,  some  are  held  in  free  socage  by  fealty 
alone,  or,  as  some  say,  by  fealty  and  homage.  Also  of  free 
tenements  some  are  held  in  absolute  and  free  and  perpetual 
alms;  these  indeed  are  as  much  the  property  of  man  as  of 
God,  for  they  are  given  not  only  to  God  and  to  such  a 
church,  but  to  the  abbots  and  priors  who  there  serve  God. 
There  is  also  the  tenement  which  is  given  by  the  tenure  of 
free  alms  to  the  rectors  of  churches,  of  which  there  are  two 
kinds,  one  more  absolute  and  free  than  the  other.  One  is 
given  by  way  of  endowment  at  the  dedication  of  the  church, 
and  the  other  after  dedication. 

ID.,  37.  Also  a  person  may  be  enieoffed  by  another  to 
hold  by  rendering  different  kinds  of  services;  for  instance, 
by  the  service  of  paying  one  penny,  and  rendering  scutage, 
and  by  one  or  more  kinds  of  personal  service.  Hence,  if  the 
service  consists  only  in  paying  money,  and  there  be  no 
scutage  or  serjeanty,  or  if  the  tenant  be  bound  to  two  dif- 
ferent things  disjunctively,  for  instance,  to  give  a  certain 
thing  in  lieu  of  all  service,  or  a  certain  sum  in  money,  in 


THE    FREEHOLD    TENURES.  79 

that  case  the  tenement  may  be  called  a  socage  tenement.  If, 
however,  there  be  in  addition  scutage  or  service  due  to  the 
king,  even  to  the  amount  of  no  more  than  a  halfpenny,  or 
serjeanty,  the  tenement  in  that  case  may  be  called  a  military 
fee. 

LIT.,  §  95.  Escuage  is  called  in  Latine  Scutagium, 
that  is,  service  of  the  shield;  and  that  tenant,  which 
holdeth  his  land  by  escuage,  holdeth  by  knights  service.  And 
also  it  is  commonly  said,  that  some  hold  by  the  service  of 
one  knight's  fee,  and  some  by  the  halfe  of  a  knight's  fee.  And 
it  is  sayd,  that  when  the  king  makes  a  voyage  royall  into 
Scotland  to  subdue  the  Scots,  then  he,  which  holdeth  by  the 
service  of  one  knight's  fee,  ought  to  be  with  the  king  fortie 
dayes,  well  and  conveniently  arrayed  for  the  war.  And  he, 
which  holdeth  his  land  by  the  moitie  of  a  knight's  fee,  ought 
to  be  with  the  king  twentie  dayes ;  and  he  which  holdeth  his 
land  by  the  fourth  part  of  a  knight's  fee,  ought  to  be  with 
the  king  ten  dayes ;  and  so  he  that  hath  more,  more,  and  he 
that  hath  lesse,  lesse. 

§  in.  Also,  divers  tenants  hold  of  their  lords  by  knights 
service,  and  yet  they  hold  not  by  escuage,  neither  shall 
they  pay  escuage;  as  they  which  hold  of  their  lords  by 
castle-ward,  that  is  to  say,  to  ward  a  tower  of  the  castle  of 
their  lord,  or  a  doore  or  some  other  place  of  the  castle,  upon 
reasonable  warning,  when  their  lords  heare  that  the  ene- 
mies will  come,  or  are  come  in  England.  And  in  many  other 
cases  a  man  may  hold  by  knight's  service,  and  yet  he  holdeth 
not  by  escuage,  nor  shall  pay  escuage,  as  shall  be  said  in  the 
tenure  by  grand  serjeantie.  But  in  all  cases  where  a  man 
holds  by  knight's  service,  this  service  draweth  to  the  lord 
ward  and  mariage. 

§  117.  Tenure  in  socage  is,  where  the  tenant  holdeth 
of  his  lord  the  tenancie  by  certeine  service  for  all  manner 
of  services,  so  that  the  service  be  not  knights  service.  As 
where  a  man  holdeth  his  land  of  his  lord  by  fealty  and 
certaine  rent,  for  all  manner  of  services ;  or  else  where  a  man 


80    READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

holdeth  his  land  by  homage,  fealty,  and  certaine  rent,  lor 
all  manner  of  services ;  or  where  a  man  holdeth  his  land  by 
homage  and  fealty  for  all  manner  of  services;  for  homage 
by  itselfe  maketh  not  knights  service. 

§  1 1 8.  Also,  a  man  may  hold  of  his  lord  by  fealty  only, 
and  such  tenure  is  tenure  in  socage ;  for  every  tenure  which 
is  not  tenure  in  chivalrie,  is  a  tenure  in  socage. 

Co.  LIT.,  86,  a.  Here  Littleton  speaketh  of  tenures  of 
common  persons;  for  grand  serjeantie  is  not  knights  ser- 
vice, and  yet  it  is  not  a  tenure  in  socage,  as  shall  be  said  here- 
after. Also  here  he  meaneth  temporall  services,  and  not 
frankalmoigne,  as  by  the  examples  he  put  is  manifest,  and  as 
in  his  proper  place  shall  appeare  more  at  large.  Also  here 
Littleton  speaketh  of  socage  largely  taken,  and  so  called  ab 
effectu,  that  is,  all  tenures  that  have  the  like  effects  and  in- 
cidents belonging  to  them  as  socage  hath,  are  termed  ten- 
ures in  socage,  albeit  originally  service  of  the  plough  was  not 
reserved.  As  if  originally  a  rose,  a  pair  of  gilt  spurs,  a  rent, 
and  such  like  were  reserved,  or  that  the  tenants  in  condemna- 
tos  ultrices  manus  mittant,  ut  alias  suspendio,  alios  mem- 
brorum  detruncatione,  &c.  puniant,  these  are  said  to  be  ten- 
ures in  socage  ab  effectu,  for  that  there  shall  be  like  gardein 
in  socage,  like  reliefe,  and  such  other  effects  and  incidents  as 
a  tenure  in  socage  hath,  and  are  so  termed  to  distinguish  the 
same  from  knights  service.  Nay,  the  worst  tenure  that  I 
have  read  of,  of  this  kind,  is  to  hold  lands  to  be  ultor  scelera- 
torum  condemnatorum,  ut  alios  suspendio,  alios  membro- 
rum  detruncatione,  vel  aliis  modis  juxta  quantitatem  perpe- 
trati  sceleris  puniat,  (that  is)  to  be  a  hangman  or  execu- 
tioner. It  seemeth  in  ancient  times  such  officers  were  not 
voluntaries,  nor  for  lucre  to  be  hired,  unlesse  they  were 
bound  thereunto  by  tenure.  And  so  note,  that  some  tenures 
in  socage  are  named  d  causa,  and  some,  and  the  greater  part, 
ab  effectu.  .  .  .  But  it  is  a  presumption  where  homage 
is  due,  that  the  land  is  holden  by  knight's  service,  as  hath 
beene  said. 


THE    FREEHOLD    TENURES.  8l 

LIT.,  §  119.  And  it  is  said,  that  the  reason  why  such 
tenure  is  called  and  hath  the  name  of  tenure  in  socage  is 
this :  because  socagium  idem  est  quod  servitiuin  socae,  and 
soca  idem  est  quod  caruca,  &c.,  i.e.,  a  soke  or  a  plough.  In 
ancient  time,  before  the  limitation  of  time  of  memory,  a 
great  part  of  the  tenants,  which  held  of  their  lords  by  socage, 
ought  to  come  with  their  ploughes,  every  of  the  said  tenants 
for  certaine  daies  in  the  yeare  to  plough  and  sow  the 
demesnes  of  the  lord.  And  for  that  such  workes  were  done 
for  the  livelihood  and  sustenance  of  their  lord,  they  were 
quit  against  their  lord  of  all  manner  of  services,  &c.  And 
because  that  such  services  were  done  with  their  ploughs, 
this  tenure  was  called  tenure  in  socage.  And  afterward 
these  services  were  changed  into  money,  by  the  consent  ol 
the  tenants  and  by  the  desire  of  the  lords,  viz.,  into  an 
annual  rent,  &c.  But  yet  the  name  of  socage  remaineth,  and 
in  divers  places  the  tenants  yet  doe  such  services  with  their 
ploughes  to  their  lords ;  so  that  all  manner  of  tenures,  which 
are  not  tenures  by  knight's  service,  are  called  tenures  in  . 
socage. 

§  120.  Also,  if  a  man  holdeth  of  his  lord  by  escuage 
certaine,  scil.  in  this  manner,  when  the  escuage  run- 
neth and  is  assessed  by  parliament  to  a  greater  or  lesser 
sum,  that  the  tenant  shall  pay  to  his  lord  but  halfe  a  marke 
for  escuage,  and  no  more  nor  lesse,  to  how  great  a  sum,  or 
to  how  little  the  escuage  runneth,  &c.,  such  tenure  is  ten- 
ure in  socage,  and  not  knight's  service.  But  where  the 
summe  which  the  tenant  shall  pay  for  escuage  is  uncertaine, 
scil.  where  it  may  be  that  the  summe  that  the  tenant  shall 
pay  for  escuage  to  his  lord,  may  be  at  one  time  more  and  at 
another  time  less,  according  as  it  is  assessed,  &c.,  such  ten- 
ure is  tenure  by  knight's  service. 

§  121.  Also,  if  a  man  holdeth  his  land  to  pay  a  certaine 
rent  to  his  lord  for  castle-gard,  this  tenure  is  tenure  in 
socage.  But  where  the  tenant  ought  by  himself  or  by  an- 
other to  doe  castle-gard,  such  tenure  is  tenure  by  knight's 
service. 


82    READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

§  122.  Also,  in  all  cases  where  the  tenant  holdeth  of  his 
lord  to  pay  unto  him  any  certaine  rent,  this  rent  is  called 
rent  service. 

§  133.  Tenant  in  frankalmoigne  is,  where  an  abbot,  or 
prior,  or  another  man  of  religion,  or  of  holy  church  holdeth 
of  his  lord  in  frankalmoigne;  that  is  to  say,  in  Latine,  in 
liberqm  elcemosinam,  that  is,  in  free  almes.  And  such 
tenure  beganne  first  in  old  time.  When  a  man  in  old  time 
was  seised  of  certain  lands  or  tenements  in  his  demesne 
as  of  fee,  and  of  the  same  land  infeoffed  an  abbot  and  his 
covent,  or  prior  and  his  covent,  to  have  and  to  hold  to 
them  and  their  successours  in  pure  and  perpetuall  almes, 
or  in  frankalmoigne;  or  by  such  words,  to  hold  of  the 
grantor,  or  of  the  lessor,  and  his  heires  in  free  almes :  in 
such  case  the  tenements  were  holden  in  frankalmoigne. 

§  135.  And  they,  which  hold  in  frankalmoigne,  are 
bound  of  right  before  God  to  make  orisons,  prayers,  masses, 
and  other  divine  services  for  the  soules  of  their  grantor 
or  feoffor,  and  for  the  soules  of  their  heires  which  are 
dead,  and  for  the  prosperity  and  good  life  and  good  health 
of  their  heires  which  are  alive.  And  therefore  they 
shall  doe  no  fealty  to  their  lord;  because  that  this  divine 
service  is  better  for  them  before  God,  then  any  doing  of 
fealty;  and  also  because  that  these  words  (frankalmoigne) 
exclude  the  lord  to  have  any  earthly  or  temporal  service,  but 
to  have  onely  divine  and  spirituall  service  to  be  done  for 
him,  &c. 

§  143.  Tenant  by  homage  auncestral  is,  where  a  tenant 
holdeth  his  land  of  his  lord  by  homage,  and  the  same  tenant 
and  his  auncestours,  whose  heire  he  is,  have  holden  the 
same  land  of  the  same  lord  and  of  his  auncestors,  whose 
heire  the  lord  is,  time  out  of  memorie  of  man,  by  homage, 
and  have  done  to  them  homage.  And  this  is  called  homage 
auncestrell,  by  reason  of  the  continuance,  which  hath  beene, 
by  title  of  prescription,  in  the  tenancie  in  the  blood  of 
the  tenant,  and  also  in  the  seigniorie  in  the  blood  of  the 
lord.  And  such  service  of  homage  ancestrall  draweth  to 


THE    FREEHOLD    TENURES.  83 

it  warrantie,  that  is  to  say,  that  the  lord,  which  is  living 
and  hath  received  the  homage  of  such  tenant,  ought  to  war- 
rant his  tenant,  when  he  is  impleaded  of  the  land  holden  of 
him  by  homage  ancestrel. 

§  153.  Tenure  by  grand  serjeanty  is,  where  a  man  holds 
his  lands  or  tenements  of  our  soveraign  lord  the  king  by 
such  services  as  he  ought  to  do  in  his  proper  person  to 
the  king,  as  to  carry  the  banner  of  the  king,  or  his  lance, 
or  to  lead  his  army,  or  to  be  his  marshall,  or  to  carry  his 
sword  before  him  at  his  coronation,  or  to  be  his  sewer  at 
his  coronation,  or  his  carver,  or  his  butler,  or  to  be  one  of 
his  chamberlaines  of  the  receipt  of  his  exchequer,  or  to  do- 
other  like  services,  &c.  And  the  cause  why  this  service  is 
called  grand  serjeanty  is,  for  that  it  is  a  greater  and  more 
worthy  service  than  the  service  in  the  tenure  of  escuage. 
For  he  which  holdeth  by  escuage  is  not  limited  by  his  tenure 
to  do  any  more  especiall  service  then  any  other  which  hold- 
eth by  escuage  ought  to  doe.  But  he  which  holdeth  by 
grand  serjeanty  ought  to  doe  some  speciall  service  to  the 
king,  which  he,  that  holds  by  escuage,  ought  not  to  doe. 

Co.  LIT.,  105,  b.  Serjeanty  commeth  of  the  French  word 
serjeant,  i.e.,  safeties,  and  serjeantia  idem  est  quod  servi- 
tium.  And  it  is  called  magna  serjeantia,  or  scrjantcria 
or  magnum  servitium,  great  service,  as  well  in  respect  of  the 
excellency  and  greatnesse  of  the  person  to  whom  it  is  to  be 
done  (for  it  is  to  be  done  to  the  king  only)  as  of  the  honour 
of  the  service  itselfe ;  and  so  Littleton  himselfe  in  this  sec- 
tion saith  that  it  is  called  magna  serjeantia,  or  magnum- 
servitium,  because  it  is  greater  and  more  worthy  than- 
knight's  service,  for  this  is  revera  servitium  regale,  and  not 
militare  onely. 

1 06,  a.  This  great  service  to  the  king  may  (as  it  appear- 
eth  hereby)  concerne  the  warres  and  matters  military;  for 
some  grand  serjeanties  are  to  be  done  in  the  time  of  war  for 
the  safety  of  the  realme;  and  some  in  time  of  peace,  for  the 
honour  of  the  realme. 


84    READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

If  the  king  giveth  lands  to  a  man  to  hold  of  him  to  be  his 
marshall  of  his  host,  or  to  be  marshall  of  England,  or  to  be 
constable  of  England,  or  to  be  high  steward  of  England, 
chamberlayne  of  England,  and  the  like,  these  are  grand  ser- 
janties ;  and  these  and  such  like  grand  serjanties  are  of  great 
and  high  jurisdiction,  and  some  df  them  concerne  matters 
military  in  time  of  war,  and  some  services  of  honour  in  time 
of  peace.  .  .  .  It  is  also  a  tenure  by  grand  serjanty  to 
hold  by  any  office  to  be  done  in  person  concerning  the  re- 
ceipt of  the  king's  treasure  .  .  '.  or  by  any  office  con- 
cerning the  administration  of  justice,  qnia  justitia  finnatur 
solium. 

LIT..  §  156.  Also,  it  is  said,  that  in  the  marches  of 
Scotland  some  hold  of  the  king  by  cornage,  that  is  to  say,  to 
wincle  a  home,  to  give  men  of  the  countrie  warning  when 
they  heare  that  the  Scots  or  other  enemies  are  come  or  will 
enter  into  England ;  which  service  is  grand  serjeanty.  But  if 
any  tenant  hold  of  any  other  lord,  then  of  the  king,  by  such 
service  of  cornage,  this  is  not  grand  serjeanty,  but  it  is 
knights  service,  and  it  draweth  to  it  ward  and  mariage,  for 
none  may  hold  by  grand  serjeanty  but  of  the  king  only. 

§  158.  And  note,  that  all  which  hold  of  the  king  by  grand 
serjanty,  hold  of  the  king  by  knights  service ;  and  the  king 
forthis  shall  have  ward,  mariage,  and  reliefe;  but  he  shallnot 
have  of  them  escuage,  unlesse  they  hold  of  him  by  escuage. 

§  159.  Tenure  by  petite  serjeanty  is,  where  a  man  holds 
his  land  of  our  soveraigne  lord  the  king,  to  yeeld  to  him 
yearly  a  bow,  or  a  sword,  or  a  dagger,  or  a  knife,  or  a  lance, 
or  a  paire  of  gloves  of  maile,  or  a  paire  of  gilt  spurs,  or  an 
arrow,  or  divers  arrowes,  or  to  yeeld  such  other  small  things 
belonging  to  warre. 

§  160.  And  such  service  is  but  socage  in  effect;  because 
that  such  tenant  by  his  tenure  ought  not  to  goe,  nor  do 
anything,  in  his  proper  person,  touching  the  warre,  but  to 
render  and  pay  yearly  certaine  things  to  the  king,  as  a  man 
ought  to  pay  a  rent. 


THE    FREEHOLD    TENURES.  85 

§  161.  And  note,  that  a  man  cannot  hold  by  grand  ser- 
jeanty,  nor  by  petite  serjeanty,  but  of  the  king,  &c. 

§  162.  Tenure  in  burgage  is,  where  an  ancient  burrough 
is,  of  which  the  king  is  lord,  and  they,  that  have  tenements 
within  the  burrough,  hold  of  the  king  their  tenements ;  that 
every  tenant  for  his  tenement  ought  to  pay  to  the  king 
a  certaine  rent  by  yeare,  &c.  And  such  tenure  is  but  tenure 
in  socage. 

§  163.  And  the  same  manner  is,  where  another  lord 
spirituall  or  temporall  is  lord  of  such  a  borrough,  and  the 
tenants  of  the  tenements  in  such  a  borrough  hold  of  their 
lord  to  pay,  each  of  them  yearly,  an  annual  rent. 

§  164.  And  it  is  called  tenure  in  burgage,  for  that  the 
tenements  within  the  burrough  be  holden  of  the  lord  of  the 
burrough  by  certaine  rent,  &c.  And  it  is  to  wit,  that  the 
ancient  townes  called  burroughes  be  the  most  ancient  towns 
that  be  within  England;  for  the  townes  that  now  be  cities 
or  counties,  in  old  time  were  boroughes,  and  called  bor- 
'oughes ;  for  of  such  old  townes  called  boroughes,  come  the 
burgesses  of  the  parliament  to  the  parliament,  when  the  king 
hath  summoned  his  parliament. 

§  165.  Also,  for  the  greater  part,  such  boroughes  have 
divers  customes  and  usages,  which  be  not  had  in  other  towns. 
For  some  boroughes  have  such  a  custome,  that  if  a  man 
have  issue  many  sonnes  and  dyeth,  the  youngest  son  shall 
inherit  all  the  tenements  which  were  his  father's  within  the 
same  borough,  as  heire  unto  his  father  by  force  of  the  cus- 
tome ;  the  which  is  called  borough  English. 

§  210.  But  in  the  county  of  Kent,  where  lands  and  tene- 
ments are  holden  in  gavel-kinde,  there,  where,  by  the  cus- 
tome and  use  out  of  minde  of  man,  the  issues  male  ought 
equally  to  inherite,  this  custome  is  allowable,  because  it 
standeth  with  some  reason ;  for  every  sonne  is  as  great  a 
gentleman  as  the  eldest  sonne  is,  and  perchance  will  grow 
to  greater  honour  and  valour,  if  he  hath  anything  by  his  an- 
cestors, or  otherwise  peradventure  he  would  not  encrease 
so  much,  &c. 


86    READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

Co.  LIT.,  140,  a.  "  In  the  county  of  Kent."  For  that  in 
no  county  of  England  lands  at  this  day  be  of  the  nature  of 
gavelkinde  of  common  right,  saving  in  Kent  onely.  But  yet 
in  divers  parts  of  England,  within  divers  manners  and  seig- 
niories, the  like  custom  is  in  force. 

LIT.,  §  211.  Also,  where  by  the  custome  called  burrough 
English  in  some  burrough,  the  yongest  son  shall  inherit  all 
the  tenements,  &c.  this  custome  also  stands  with  some  cer- 
taine  reason;  because  that  the  yonger  sonne  (if  he  lacke 
father  and  mother)  because  of  his  yonger  age,  may  least  of 
all  his  brethren  helpe  himselfe,  &c. 

2  BL.  COM.,  62.  The  first,  most  universal,  and  esteemed 
the  most  honorable  species  of  tenure,  was  that  by  knight- 
service,  called  in  Latin  servitium  militare  and  in  law- 
French,  chivalry,  or  service  de  chivaler;  answering  to  the 
fief  d'haubert  of  the  Normans,  which  name  is  expressly 
given  it  by  the  Mirrour.1  This  differed  in  very  few  points 
from  a  pure  and  proper  feud,  being  entirely  military,  and 
the  general  effect  of  the  feodal  establishment  in  England. 
To  make  a  tenure  by  knight-service  a  determinate  quantity 
of  land  was  necessary,  which  was  called  a  knight's  fee, 
feodnm  militare;  the  measure  of  which,  in  3  Edw.  I.,  was 
estimated  at  twelve  plough-lands,  and  its  value  (though  it 
varied  with  the  times)  in  the  reigns  of  Edward  I.  and 
Edward  II.  was  stated  at  £20  per  annum.  And  he  who 
held  this  proportion  of  land  (or  a  whole  fee)  by  knight- 
service  was  bound  to  attend  his  lord  to  the  wars  for  forty 
days  in  every  year,  if  called  upon ;  which  attendance  was 
his  reditus  or  return,  his  rent  or  service  for  the  land  he 
claimed  to  hold.  If  he  held  only  half  a  knight's  fee,  he  was 
only  bound  to  attend  twenty  days,  and  so  in  proportion.  And 
there  is  reason  to  apprehend  that  this  service  was  the  whole 
that  our  ancestors  meant  to  subject  themselves  to;  the  other 
fruits  and  consequences  of  this  tenure  being  fraudulently 

'C.  2,  §  27. 


THE    FREEHOLD    TENURES.  8/ 

superinduced,  as  the  regular  (though  unforeseen)  appen- 
dages of  the  feodal  system. 

This  tenure  of  knight-service  had  all  the  marks  of  a 
strict  and  regular  feud :  it  was  granted  by  words  of  pure 
donation,  dedi  et  concessi;  was  transferred  by  investiture  or 
delivering  corporal  possession  of  the  land,  usually  called 
livery  of  seisin ;  and  was  perfected  by  homage  and  fealty.  It 
also  drew  after  it  these  seven  fruits  and  consequences,  as 
inseparably  incident  to  the  tenure  in  chivalry — namely,  aids, 
relief,  primer  seisin,  wardship,  marriage,  fines  for  aliena- 
tion, and  escheat. 

ID.,  73-75.  There  were  also  some  other  species  of  knight's 
service,  so  called,  though  improperly,  because  the  service,  or 
render,  was  of  a  free  and  honourable  nature,  and  equally  un- 
certain as  to  the  time  of  rendering  as  that  of  knight's  service 
proper,  and  because  they  were  attended  with  similar  fruits 
and  consequences.  Such  was  the  tenure  by  grand  serjeanty, 
per  magnum  servitium,  whereby  the  tenant  was  bound,  in- 
stead of  serving  the  king  generally  in  his  wars,  to  do  some 
special  honorary  service  to  the  king  in  person ;  as  to  carry  his 
banner,  his  sword,  or  the  like ;  or  to  be  his  butler,  champion, 
or  other  officer  at  his  coronation.  It  was  in  most  other  re- 
spects like  knight-service ;  only  he  was  not  bound  to  pay  aid, 
or  escuage,  and,  when  tenant  by  knight-service  paid  five 
pounds  for  a  relief  on  every  knight's  fee,  tenant  by  grand 
serjeanty  paid  one  year's  value  of  his  land,  were  it  much  or 
little.  Tenure  by  carnage,  which  was  to  wind  a  horn  when 
the  Scots  or  other  enemies  entered  the  land,  in  order  to  warn 
the  king's  subjects,  was  (like  other  services  of  the  same 
nature)  a  species  of  grand  serjeanty. 

These  services,  both  of  chivalry  and  grand  serjeanty,  were 
all  personal,  and  uncertain  as  to  their  quantity  or  duration. 
But  the  personal  attendance  in  knight-service  growing 
troublesome  and  inconvenient  in  many  respects,  the  tenants 
found  means  of  compounding  for  it ;  by  first  sending  others 
in  their  stead,  and  in  process  of  time  making  a  pecuniary 
satisfaction  to  the  lords  in  lieu  of  it.  This  pecuniary  satis- 


88    READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

faction  at  last  came  to  be  levied  by  assessments,  at  so  much 
for  every  knight's  fee ;  and  therefore  this  kind  of  tenure  was 
called  scittagium  in  Latin,  or  servitium  scuti;  scutum  being 
then  a  well-known  denomination  for  money ;  and  in  like 
manner,  it  was  called,  in  our  Norman  French,  escnagc; 
being  indeed  a  pecuniary  instead  of  a  military  service.  The 
first  time  this  appears  to  have  been  taken  was  in  the 
5  Hen.  II.,  on  account  of  his  expedition  to  Toulouse;  but  it 
soon  came  to  be  so  universal  that  personal  attendance  fell 
quite  into  disuse.  Hence  we  find  in  our  ancient  histories, 
that,  from  this  period,  when  our  kings  went  to  war,  they 
levied  scutages  on  their  tenants — that  is,  on  all  the  land- 
holders of  the  kingdom,  to  defray  their  expenses,  and  to  hire 
troops ;  and  these  assessments  in  the  time  of  Henry  II.  seem 
to  have  been  made  arbitrarily,  and  at  the  king's  pleasure. 
Which  prerogative  being  greatly  abused  by  his  successors, 
it  became  matter  of  national  clamor ;  and  King  John  was 
obliged  to  consent,  by  his  magna  carta,  that  no  scutage 
should  be  imposed  without  consent  of  parliament.  But  this 
clause  was  omitted  in  his  son  Henry  III.'s  charter,  where 
we  only  find  that  scutages,  or  escuage,  should  be  taken  as 
they  were  used  to  be  taken  in  the  time  of  Henry  II.,  that  is, 
in  a  reasonable  and  moderate  manner.  Yet  afterwards,  by 
statute  25  Edw.  I.,  ch.  5,  6,  and  many  subsequent  statutes, 
it  was  again  provided  that  the  king  should  take  no  aids  or 
tasks  but  by  the  common  assent  of  the  realm ;  hence  it  was 
held  in  our  old  books  that  escuage  or  scutage  could  not  be 
levied  but  by  consent  of  parliament ;  such  scutages  being 
indeed  the  groundwork  of  all  succeeding  subsidies,  and  the 
land-tax  of  later  times. 

Since,  therefore,  escuage  differed  from  knight-service  in 
nothing  but  as  a  compensation  differs  from  actual  service, 
knight-service  is  frequently  confounded  with  it.  And  thus 
Littleton1  must  "be  understood  when  he  tells  us  that  tenant 
by  homage,  fealty,  and  escuage  was  tenant  by  knight-ser- 
vice, that  is,  that  this  tenure  (being  subservient  to  the  mili- 

1  §  103- 


THE    FREEHOLD    TENURES.  89 

tary  policy  of  the  nation)  was  respected  as  a  tenure  in  chiv- 
alry. But  as  the  actual  service  was  uncertain  and  depended 
upon  emergencies,  so  it  was  necessary  that  this  pecuniary 
compensation  should  be  equally  uncertain  and  depend  on 
the  assessments  of  the  legislature  suited  to  those  emergen- 
cies. For  had  the  escuage  been  a  settled  invariable  sum, 
payable  at  certain  times,  it  had  been  neither  more  nor  less 
than  a  mere  pecuniary  rent ;  and  the  tenure,  instead  of 
knight-service,  would  have  then  been  of  another  kind,  called 
socage,  of  which  we  shall  speak  in  the  next  chapter. 

ID.,  78-81.  The  military  tenure,  or  that  by  knight-service, 
consisted  of  what  were  reputed  the  most  free  and  honorable 
services,  but  which  in  their  nature  were  unavoidably  un- 
certain in  respect  to  the  time  of  their  performance.  The 
second  species  of  tenure,  or  free  socage,  consisted  also  of 
free  and  honorable  services,  but  such  as  were  liquidated  and 
reduced  to  an  absolute  certainty.  And  this  tenure  not  only 
subsists  to  this  day,  but  has  in  a  manner  absorbed  and  swal- 
lowed up  (since  the  statute  of  Charles  II.)  almost  every 
other  species  of  tenure.  .  .  . 

Socage,  in  its  most  general  and  extensive  signification, 
seems  to  denote  a  tenure  by  any  certain  and  determinate  ser- 
vice. And  in  this  sense  it  is  by  our  ancient  writers  con- 
stantly put  in  opposition  to  chivalry,  or  knight-service,  where 
the  render  was  precarious  and  uncertain.  Thus  Bracton  :l 
If  a  man  holds  by  rent  in  money,  without  any  escuage  or  ser- 
jeanty,  "id  tenementum  did  potest  socagium;"  but  if  you 
add  thereto  any  royal  service,  or  escuage,  to  any  the  smallest 
amount,  "  illud  did  potent  feodum  militare."  So,  too,  the 
author  of  Fleta  :2  "  Ex  donationibus,  servitia  militaria  vel 
magnae  serjantiae  non  continentibus,  oritur  nobis  quoddam 
nomcn  generate,  quod  est  socagium."  Littleton  also3  de- 
fines it  to  be,  where  the  tenant  holds  his  tenement  of  the  lord 
by  any  certain  service,  in  lieu  of  all  other  services ;  so  that 
they  be  not  services  of  chivalry,  or  knight-service.  And 
therefore  afterwards4  he  tells  us,  that  whatsoever  is  not 

1  L.  2,  c.  16,  §  9.  »L.  3,  c.  14,  §9-  '§"7-  4§n8. 


9<3         READINGS    IN    THE    LAW    OF    REAL    PROPERTY. 

tenure  in  chivalry  is  tenure  in  socage :  in  like  manner  as  it  is 
denned  by  Finch,1  a  tenure  to  be  done  out  of  war.  The  ser- 
vice must  therefore  be  certain,  in  order  to  denominate  it 
socage;  as  to  hold  by  fealty  and  2os.  rent;  or  by  homage, 
fealty,  and  2os.  rent ;  or  by  homage  and  fealty  without  rent ; 
or  by  fealty  and  certain  corporal  service,  as  ploughing  the 
lord's  land  for  three  days ;  or  by  fealty  only,  without  any 
other  service ;  for  all  these  are  tenures  in  socage. 

But  socage,  as  was  hinted  in  the  last  chapter,  is  of  two 
sorts :  Free-socage,  where  the  services  are  not  only  certain 
but  honorable;  and  villein-socage,  where  the  services, though 
certain,  are  of  a  baser  nature.  Such  as  hold  by  the  former 
tenure  are  called  in  Glanvill z  and  other  subsequent  authors 
by  the  name  of  liberi  sokemanni,  or  tenants  in  free-socage. 
Of  this  tenure  we  are  first  to  speak;  and  this,  both  in  the 
nature  of  its  service  and  the  fruits  and  consequences  apper- 
taining thereto,  was  always  by  much  the  most  free  and  inde- 
pendent species  of  any.  And  therefore  I  cannot  but  assent 
to  Mr.  Somner's  etymology  of  the  word:3  who  derives  it 
from  the  Saxon  appellation  soc,  which  signifies  liberty  or 
privilege,  and  being  joined  to  a  usual  termination,  is  called 
socage,  in  Latin  socagium;  signifying  thereby  a  free  or 
privileged  tenure.  This  etymology  seems  to  be  much  more 
just  than  that  of  our  common  lawyers  in  general,  who  de- 
rive it  from  soca,  an  old  Latin  word,  denoting  (as  they  tell 
us)  a  plough :  for  that  in  ancient  time  this  socage  tenure 
consisted  in  nothing  else  but  services  of  husbandry,  which 
the  tenant  was  bound  to  do  to  his  lord,  as  to  plough,  sow, 
or  reap  for  him ;  but  that  in  process  of  time  this  service  was 
changed  into  an  annual  rent  by  consent  of  all  parties,  and 
that,  in  memory  of  its  original,  it  still  retains  the  name  of 
socage  or  plough-service.4  But  this  by  no  means  agrees  with 
what  Littleton  himself  tells  us,5  that  to  hold  by  fealty  only, 
without  paying  any  rent,  is  tenure  in  socage;  for  here  is 
plainly  no  commutation  for  plough-service.  Besides,  even 
services  confessedly  of  a  military  nature  and  original  (as 
1  L.  147.  *L.  3,  c.  7.  3Gavelk.  138.  4  Litt.  §  119.  5§  118. 


THE    FREEHOLD    TENURES.  9! 

escuage,  which,  while  it  remained  uncertain,  was  equivalent 
to  knight-service),  the  instant  they  were  reduced  to  a  cer- 
tainty changed  both  their  name  and  nature,  and  were  called 
socage.  It  was  the  certainty,  therefore,  that  denominated  it 
a  socage  tenure ;  and  nothing  sure  could  be  a  greater  liberty 
or  privilege,  than  to  have  the  service  ascertained,  and  not 
left  to  the  arbitrary  calls  of  the  lord,  as  the  tenures  of  chiv- 
alry. Wherefore  also  Britton,  who  describes  lands  in  soc- 
age tenure  under  the  name  of  fraunke  ferme*  tells  us  that 
they  are  "  lands  and  tenements,  whereof  the  nature  of  the 
fee  is  changed  by  feoffment  out  of  chivalry  for  certain 
yearly  services,  and  in  respect  whereof  neither  homage, 
ward,  marriage,  nor  relief  can  be  demanded."  Which  leads 
us  also  to  another  observation,  that  if  socage  tenures  were  of 
such  base  and  servile  original,  it  is  hard  to  account  for  the 
very  great  immunities  which  the  tenants  of  them  always  en- 
joyed ;  so  highly  superior  to  those  of  the  tenants  by  chivalry, 
that  it  was  thought,  in  the  reigns  of  both  Edward  I.  and 
Charles  II.,  a  point  of  the  utmost  importance  and  value  to 
the  tenants,  to  reduce  the  tenure  by  knight-service  to  fraunke 
ferme  or  tenure  by  socage.  We  may  therefore,  I  think, 
fairly  conclude  in  favor  of  Somner's  etymology,  'and  the  lib- 
eral extraction  of  the  tenure  in  free-socage,  against  the 
authority  even  of  Littleton  himself. 

Taking  this,  then,  to  be  the  meaning  of  the  word,  it  seems 
probable  that  the  socage  tenures  were  the  relics  of  Saxon 
liberty,  retained  by  such  persons  as  had  neither  forfeited 
them  to  the  king,  nor  been  obliged  to  exchange  their  tenure 
for  the  more  honorable,  but,  at  the  same  time,  more  burthen- 
some  tenure  of  knight-service.  This  is  peculiarly  remark- 
able in  the  tenure  which  prevails  in  Kent,  called  gavelkind, 
which  is  generally  acknowledged  to  be  a  species  of  socage 
tenure ;  the  preservation  whereof  inviolate  from  the  innova- 
tions of  the  Norman  conqueror  is  a  fact  universally  known. 
And  those  who  thus  preserved  their  liberties  were  said  to 
hold  in  free  and  common  socage. 

1 C.  66. 


92    READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

As,  therefore,  the  grand  criterion  and  distinguishing 
mark  of  this  species  of  tenure  are  the  having  its  renders  or 
services  ascertained,  it  will  include  under  it  all  other  methods 
of  holding  free  lands  by  certain  and  invariable  rents  and 
duties :  and  in  particular,  petit  serjeanty,  tenure  in  burgage, 
and  gavelkind,  .  .  . 

ID.,  84-85.  Other  special  customs  there  are  in  different 
burgage  tenures ;  as  that,  in  some,  the  wife  shall  be  endowed 
of  all  her  husband's  tenements,  and  not  of  the  third  part 
only,  as  at  the  common  law ;  and  that,  in  others,  a  man 
might  dispose  of  his  tenements  by  will,  which,  in  general, 
was  not  permitted  after  the  Conquest  till  the  reign  of  Henry 
VIII. ;  though  in  the  Saxon  times  it  was  allowable.  A  preg- 
nant proof  that  these  liberties  of  socage  tenure  were  frag- 
ments of  Saxon  liberty. 

The  nature  of  the  tenure  in  gavelkind  affords  us  a  still 
stronger  argument.  It  is  universally  known  what  struggles 
the  Kentish  men  made  to  preserve  their  ancient  liberties,  and 
with  how  much  success  those  struggles  were  attended.  And 
as  it  is  principally  here  that  we  meet  with  the  custom  of 
gavelkind  ( though  it  was  and  is  to  be  found  in  some  other 
parts  of  the  kingdom),  we  may  fairly  conclude  that  this 
was  a  part  of  those  liberties ;  agreeably  to  Mr.  Selden's 
opinion  that  gavelkind  before  the  Norman  Conquest  was 
the  general  custom  of  the  realm.  The  distinguishing  prop- 
erties of  this  tenure  are  various.  Some  of  the  principal  are 
these:  I.  The  tenant  is  of  age  sufficient  to  aliene  his  estate 
by  feoffment  at  the  age  of  fifteen.  2.  The  estate  does  not 
escheat  in  case  of  an  attainder  and  execution  for  felony ; 
their  maxim  being  "  the  father  to  the  bough,  the  son  to  the 
plough."  3.  In  most  places  he  had  a  power  of  devising  lands 
by  will,  before  the  statute  for  that  purpose  was  made. 
4.  The  lands  descend  not  to  the  eldest,  youngest,  or  any  one 
son  only,  but  to  all  the  sons  together;  which  was  indeed 
anciently  the  most  usual  course  of  descent  all  over  England, 
though  in  particular  places  particular  customs  prevailed. 
These,  among  other  properties,  distinguished  this  tenure  in 


THE    FREEHOLD    TENURES.  93 

a  most  remarkable  manner;  and  yet  it  is  said  to  be  only  a 
species  of  a  socage  tenure,  modified  by  the  custom  of  the 
country;  the  lands  being  holden  by  suit  of  court  and  fealty, 
which  is  a  service  in  its  nature  certain.  Wherefore,  by  a 
charter  of  King  John,  Hubert,  Archbishop  of  Canterbury, 
was  authorized  to  exchange  the  gavelkind  tenures  holden 
of  the  See  of  Canterbury  into  tenures  by  knight's  service ; 
and  by  statute  31  Hen.  VIII. ,  ch.  3,  for  disgavelling  the 
lands  of  divers  lords  and  gentlemen  in  the  county  of  Kent, 
they  are  directed  to  be  descendible  for  the  future  like  other 
lands  which  were  never  holden  by  service  of  socage.  Now, 
the  immunities  which  the  tenants  in  gavelkind  enjoyed  were 
such  as  we  cannot  conceive  should  be  conferred  upon  mere 
ploughmen  and  peasants;  from  all  which  I  think  it  suffi- 
ciently clear  that  tenures  in  free  socage  are  in  general  of  a 
nobler  original  than  is  assigned  by  Littleton,  and  after  him 
by  the  bulk  of  our  common  lawyers. 

i  POLL.  &  MAIT.,  HIST.  ENG.  LAW,  230-234.  Knight's 
Service. — In  some  of  our  modern  books  military  tenure  has 
a  definiteness  and  a  stability  which  it  never  had  elsewhere. 
An  army  is  settled  on  the  land,  is  rooted  in  the  land.  The 
grades  in  "  the  service  "  correspond  to,  and  indeed  are,  the 
grades  of  landholdership ;  the  supreme  landlord  is  com- 
mander-in-chief ;  each  of  his  immediate  tenants  is  the  gen- 
eral of  an  army  corps ;  the  regiments,  squadrons,  companies, 
answer  to  honors  or  manors  or  knight's  fees.  All  is  accu- 
rately defined ;  each  man  knows  his  place,  knows  how  many 
days  he  must  fight  and  with  what  arms.  This  "  feudal  sys- 
tem "  is  the  military  system  of  England  from  the  Norman 
Conquest  onward  throughout  the  middle  ages ;  by  means  of 
it  our  land  is  defended  and  our  victories  are  won  in  Wales 
and  in  Ireland,  in  Scotland  and  in  France.  When,  however, 
we  look  at  the  facts,  all  this  definiteness,  all  this  stability, 
vanish.  We  see  growth  and  decay ;  we  see  decay  beginning 
before  growth  is  at  an  end.  Before  there  is  much  law  about 
military  tenure  it  has  almost  ceased  to  be  military  in  any 


94    READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

real  sense.  We  must  have  regard  to  dates.  -Every  one 
knows  that  the  military  tenure  of  Charles  I.'s  reign  was  very 
different  from  the  military  tenure  of  Edward  I.'s ;  but  this 
again  was  very  different  from  the  military  tenure  of  Henry 
I.'s  or  even  of  Henry  II. 's  reign. 

Soon  after  the  Conquest  a  process  begins  whereby  the 
duty  of  service  in  the  army  becomes  rooted  in  the  tenure  of 
land.  This  goes  on  for  a  century ;  but  before  it  is  finished, 
before  the  system  of  knight's  fees  has  been  well  ordered  and 
arranged,  the  kings  are  already  discovering  that  the  force 
thus  created  is  not  what  they  want,  or  is  not  all  that  they 
want.  It  may  serve  to  defend  a  border,  to  harry  Wales  or 
Scotland  for  a  few  weeks  in  the  summer,  but  for  continuous 
wars  in  France  it  will  not  serve ;  the  king  would  rather  have 
money ;  he  begins  to  take  scutages.  This,  as  we  shall  soon 
see,  practically  alters  the  whole  nature  of  the  institution. 
Another  century  goes  by,  and  scutage  itself  has  become 
antiquated  and  unprofitable;  another,  and  scutage  is  no 
longer  taken.  Speaking  roughly  we  may  say  that  there  is 
one  century  (1066-1166)  in  which  the  military  tenures  are 
really  military,  though  as  yet  there  is  little  law  about  them ; 
that  there  is  another  century  (1166-1266)  during  which 
these  tenures  still  supply  an  army,  though  chiefly  by  supply- 
ing its  pay;  and  that  when  Edward  I.  is  on  the  throne  the 
military  organization  which  we  call  feudal  has  already 
broken  down  and  will  no  longer  provide  either  soldiers  or 
money  save  in  very  inadequate  amounts.  However,  just 
while  it  is  becoming  little  better  than  a  misnomer  to  speak 
of  military  tenure,  the  law  about  military  tenure  is  being 
evolved,  but  as  a  part  rather  of  our  private  than  of  our  pub- 
lic law.  The  tenant  will  really  neither  fight  nor  pay  scutage. 
but  there  will  be  harsh  and  intricate  law  for  him  about  the 
reliefs  and  wardships  and  marriages  that  his  lord  can  claim 
because  the  tenure  is  military.  Thus  in  speaking  of  tenure 
by  knight's  service  as  it  was  before  the  days  of  Edward  I., 
we  have  to  speak  not  of  a  stable,  but  of  a  very  unstable  in- 
stitution, and  if  of  necessity  we  describe  it  in  general  terms. 


THE    FREEHOLD    TENURES.  95 

this  should  not  be  done  without  a  preliminary  protest  that 
our  generalities  will  be  but  approximately  true.  As  to  scu- 
tage,  in  the  whole  course  of  our  history  this  impost  was 
levied  but  some  forty  times,  and  we  cannot  be  certain  that 
the  method  of  assessing  and  collecting  it  remained  constant. 
An  English  lawyer  turning  to  study  the  history  of  these 
matters  should  remember  that  if  Littleton  had  cared  to 
know  much  about  them,  he  would  have  had  to  devote  his 
time  to  antiquarian  research. 

By  far  the  greater  part  of  England  is  held  of  the  king 
by  knight's  service  (per  servitium  militare}  ;  it  is  compara- 
tively rare  for  the  king's  tenants  in  chief  to  hold  by  any  of 
the  other  tenures.  In  order  to  understand  this  tenure  we 
must  form  the  conception  of  a  unit  of  military  service.  That 
unit  seems  to  be  the  service  of  one  knight  or  fully  >  armed 
horseman  (servitium  unius  militis)  to  be  done  to  the  king 
in  his  army  for  forty  days  in  the  year,  if  it  be  called  for.  In 
what  wars  such  service  must  be  done,  we  need  not  here  de- 
termine ;  nor  would  it  be  easy  to  do  so,  for  from  time  to  time 
the  king  and  his  barons  have  quarrelled  about  the  extent  of 
the  obligation,  and  more  than  one  crisis  of  constitutional 
history  has  this  for  its  cause.  It  is  a  question,  we  may  say, 
which  never  receives  any  legal  answer. 

Even  the  limit  of  forty  days  seems  to  have  existed  rather 
in  theory  than  in  practice,  and  its  theoretic  existence  can 
hardly  be  proved  for  England  out  of  any  authoritative  docu- 
ment. .  .  . 

No  serious  war  could  be  carried  on  by  a  force  which 
would  dissipate  itself  at  the  end  of  forty  days,  and  it  seems 
probable  that  the  king  could  and  did  demand  longer  service, 
and  was  within  his  right  in  so  doing,  if  he  tendered  wages, 
or  if,  as  was  sometimes  the  case,  he  called  out  but  a  frac- 
tional part  of  the  feudal  force.  We  have  to  remember  that 
the  old  duty  of  every  man  to  bear  arms  at  least  in  defen- 
sive warfare,  was  never — not  even  in  France — completely 
merged  in,  or  obliterated  by,  the  feudal  obligation.  Just 
when  there  seems  a  chance  that  this  obligation  may  become 


96    READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

strictly  defined  by  the  operation  of  the  law  courts,  the  king 
is  beginning  to  look  to  other  quarters  for  a  supply  of  sol- 
diers, to  insist  that  all  men  shall  be  armed,  to  compel  men 
of  substance  to  become  knights,  even  though  they  do  not 
hold  by  military  tenure,  and  to  issue  commissions  of  array. 

ID.,  271-275.  Socage. — Any  tenure  that  on  the  one  hand 
is  free  and  on  the  other  hand  is  not  spiritual,  nor  military, 
nor  "  serviential,"  is  called  tenure  in  free  socage : — to  this 
result  lawyers  are  gradually  coming.  Obviously  therefore 
this  term  socage  will  cover  a  large  field ;  it  will  include  vari- 
ous relationships  between  men,  which,  if  we  regard  their 
social  or  economic  or  even  their  purely  legal  aspects,  seem 
very  different  from  each  other.  We  may  look  at  a  few  typi- 
cal cases. 

(a)  The  service  which  the  tenant  owes  to  his  lord  may 
be  merely  nominal ;  he  has  no  rent  to  pay  or  has  to  give  but 
a  rose  every  year  just  by  way  of  showing  that  the  tenure 
exists.  Such  a  case  may  be  the  effect  of  one  of  various 
causes.  It  may  originate  in  what  we  should  call  a  family 
settlement :  a  landowner  sometimes  provides  for  a  daughter 
or  a  younger  son  by  a  gift  of  land  to  be  held  by  a  nominal 
service.  Or,  again,  the  gift  may  be  a  reward  to  some  de- 
pendant for  past  services,  or  a  retaining  fee  for  services  to 
be  rendered  hereafter,  which  services,  however,  are  not  de- 
fined and  are  not  legally  exigible.  Or,  again,  there  may  well 
have  been  what  in  truth  was  a  sale  of  the  land :  in  return  for 
a  gross  sum  a  landowner  has  created  a  nominal  tenure.  To 
have  put  the  purchaser  in  the  vendor's  place  might  have  been 
difficult,  perhaps  impossible;  so  the  purchaser  is  made  ten- 
ant to  the  vendor  at  an  insignificant  rent. 

(&)  Such  cases  gradually  shade  off  into  others  in  which 
a  substantial  rent  has  been  reserved.  We  pass  through  the 
very  numerous  instances  in  which  the  lord  is  to  receive 
yearly  some  small  article  of  luxury,  a  sparrowhawk,  a  pair 
of  gloves,  a  pair  of  gilt  spurs,  a  pound  of  pepper  or  of  in- 
cense or  of  wax,  to  other  cases  in  which  the  rent,  if  we  can- 
not call  it  a  "  rack  rent,"  is  "  the  best  rent  that  can  reason- 


THE    FREEHOLD    TENURES.  97 

ably  be  gotten."    We  thus  enter  the  sphere  of  commerce,  of 
rents  fixed  by  supply  and  demand. 

Such  tenures  as  these  may  be  found  in  every  zone  of  the 
territorial  system.  The  tenant  may  be  holding  of  the  king  in 
chief;  the  king  has,  as  we  should  say,  granted  perpetual 
leases  at  substantial  rents  of  some  of  his  manors,  the  lessees 
being  sometimes  lay  barons,  sometimes  religious  houses. 
Again,  from  the  Conquest  onward,  to  say  nothing  of  an 
earlier  time,  very  great  men  have  not  thought  it  beneath 
them  to  hold  church  lands  at  easy  rents.  It  is  an  accusation 
common  in  monastic  annals  that  the  abbots  of  the  Norman 
time  dissipated  the  lands  of  their  houses  by  improvident 
grants  to  their  foreign  kinsmen  or  by  taking  fines  instead 
of  reserving  adequate  rents.  In  such  cases  these  tenants  in 
socage  may  have  other  tenants  in  socage  below  them,  who 
will  pay  them  heavier  rents.  Ultimately  we  come  to  the 
actual  occupant  of  the  soil,  whose  rent  will  in  many  cases 
represent  the  best  offer  that  his  landlord  could  obtain  for  the 
land.  Occasionally  he  may  be  paying  more  for  the  land  than 
can  be  got  from  the  villeins  of  the  same  village. 

(c)  Sometimes  we  find  in  charters  of  feoff ment  that  the 
feoffee,  besides  paying  rent,  is  to  do  or  get  done  a  certain 
amount  of  agricultural  labor  on  his  lord's  land ;  so  much 
ploughing,  so  much  reaping.    The  feoffee  may  be  a  man  of 
mark,  an  abbot,  a  baron,  who  will  have  many  tenants  under 
him  and  will  never  put  his  hand  to  the  plough.    These  cases 
are  of  importance  because  they  seem  to  be  the  channel  by 
which  the  term  socage  gradually  spreads  itself. 

(d)  Finally,  within  a  manor    there    often    are    tenant* 
bound  to  pay  divers  dues  in  money  and  in  kind  and  bound 
to  do  or  get  done  a  fixed  quantity  of  agricultural  service  for 
their  lords.     Their  tenure  is  often  regarded  as  very  old; 
often  they  have  no  charters  which  express  its  terms.    Here- 
after we  shall  see  that  it  is  not  always  easy  to  mark  the 
exact  line  which  separates  them  from  the  tenants  in  villein- 
age among  whom  they  live  and  along    with    whom    they 
labor  for  the  lord's  profit.    Some  of  them  are  known  as  free 


98    READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

sokemen  (sokemanni,  sochemanni)  ;  but  this  name  is  not 
very  common  except  on  "  the  ancient  demesne  "  of  the 
Crown.  .  .  . 

Now,  to  all  appearance  the  term  socage,  a  term  not  found 
in  Normandy,  has  been  extending  itself  upward ;  a  name 
appropriate  to  a  class  of  cultivating  peasants  has  begun  to 
include  the  baron  or  prelate  who  holds  land  at  a  rent,  but  is 
not  burdened  with  military  service.  Of  such  a  man  it  would 
seem  natural  to  say  that  he  holds  at  a  rent  (tenet  ad  cen- 
sum),  and  for  a  century  and  more  after  the  Norman  Con- 
quest it  is  rare  to  call  his  tenure  socage.  He  is  sometimes 
said  to  have  feodum  censuale;  far  more  commonly  he  is  said 
to  hold  "  in  fee  farm."  This  term  has  difficulties  of  its  own, 
for  it  appears  in  many  different  guises ;  a  feoffee  is  to  hold 
in  feofirma,  in  feufirmam,  in  fedfirmam,  in  feudo  nnnam, 
in  feudo  firma,  ad  fir  mam  feodalem,  but  most  commonly,  in 
feodi  firma.  The  old  English  language  had  both  of  the 
words  of  which  this  term  is  compounded,  both  feoh  (prop- 
erty) and  feorm  (rent)  ;  but  so  had  the  language  of  France, 
and  in  Norman  documents  the  term  may  be  found  in  various 
shapes,  firmam  fedium,  fendifirmam.  But,  whatever. may 
be  the  precise  history  of  the  phrase,  to  hold  in  fee  farm 
means  to  hold  heritably,  perpetually,  at  a  rent ;  the  fee,  the 
inheritance,  is  let  to  farm.  This  term  long  struggles  to 
maintain  its  place  by  the  side  of  socage ;  the  victory  of  the 
latter  is  not  perfect  even  in  Bracton's  day ;  the  complete 
merger  of  fee  farm  in  socage  is  perhaps  due  to  a  statute  of 
Edward  I.,  though  the  way  toward  this  end  had  long  been 
prepared. 

As  to  the  word  socage,  a  discussion  of  it  would  open  a 
series  of  difficult  problems  about  the  administration  of  jus- 
tice in  the  days  before  the  Conquest.  .  .  .  Bracton  be- 
lieved— erroneously  no  doubt,  but  erroneous  etymology  is  a 
force  in  the  history  of  the  law — that  socage  had  to  do  with 
soc,  the  French  word  for  a  ploughshare ;  tenants  in  socage 
therefore  are  essentially  agriculturists,  and  the  duty  of 
ploughing  the  lord's  demesne  is  the  central  feature  of  soc- 


THE    FREEHOLD    TENURES.  99 

age.  In  the  second  place,  if  we  turn  to  the  true  derivation, 
we  come  to  much  the  same  result ;  socage  is  it  starting  the 
tenure  of  those  sokemen  of  whom  we  read  in  Domesday 
book ;  socage  is  an  abstract  term  which  describes  their  con- 
dition. Gradually  it  has  been  extended  and  therefore  at- 
tenuated until  it  is  capable  of  expressing  none  but  negative 
characteristics — socage  is  a  tenure  which  is  not  spiritual,  not 
military,  not  serviential.  No  similar  extension  has  been 
given  to  the  word  sokeman;  in  the  thirteenth  century  many 
persons  hold  in  socage  who  would  be  insulted  were  they 
called  sokemen ;  for  the  sokemen  are  a  humble,  though  it 
may  be  a  well-to-do  class. 

That  they  have  been  a  numerous  class  we  may  gather  as 
from  other  evidence  so  from  this,  that  socage  becomes  the 
one  great  standing  contrast  to  military  tenure,  and  as  the  op- 
pressive incidents  of  military  tenure  are  developed,  every 
man  who  would  free  his  holding  from  the  burdens  of  ward- 
ship and  marriage  is  anxious  to  prove  that  he  holds  in  so- 
cage. To  gain  this  end  he  is  full  willing  to  sink  somewhat  of 
dignity ;  he  will  gladly  hold  by  the  peasant's  tenure  when  the 
most  distinctive  marks  of  that  tenure  are  immunities — no 
scutage,  no  wardship,  no  marriage. 


CHAPTER  II. 

INCIDENTS  OF  FEUDAL  TENURE. 

STAT.  i  HEN.  I.,  cc.  3,  4  (noo).  If  any  of  my  barons 
or  other  men  wishes  to  give  his  daughter,  or  sister,  or  niece, 
or  cousin  in  marriage,  let  him  speak  with  me;  but  I  will 
neither  take  anything  of  his  for  the  license,  nor  will  I  forbid 
him  to  give  her  away,  unless  it  be  to  an  enemy  of  mine.  And 
if  on  the  death  of  one  of  my  barons  or  other  men  he  leaves  a 
daughter  as  heir,  I  will  give  her  with  her  land  by  the  coun- 
sel of  my  barons.  If  he  leaves  a  widow,  who  is  without 
children,  she  shall  have  her  dower  and  marriage  portion, 
and  I  will  not  give  her  in  marriage  against  her  will.  If  she 
has  children,  she  shall  have  her  dower  and  marriage  por- 
tion while  she  remains  chaste,  and  I  will  not  give  her  unless 
with  her  consent.  And  the  wife  or  some  other  relative  who 
has  the  best  claim  shall  be  guardian  of  the  land  and  of  the 
children.  And  I  bid  my  barons  keep  within  the  same  bounds 
as  regards  the  sons,  daughters  and  wives  of  their  men. 

MAGNA  CARTA  (1215),  c.  2.  If  any  of  our  earls  or  barons, 
or  any  other  which  hold  of  us  in  chief  by  knight's  service, 
die,  and  at  the  time  of  his  death  his  heir  be  of  full  age, 
and  oweth  to  us  relief,  he  shall  have  his  inheritance  by 
the  old  relief ;  that  is  to  say,  the  heir  or  heirs  of  an  earl,  for 
a  whole  earldom,  by  one  hundred  pounds ;  the  heir  or  heirs 
of  a  baron,  for  a  whole  barony,  by  one  hundred  marks ;  the 
heir  or  heirs  of  a  knight  for  one  whole  knight's  fee,  one 
hundred  shillings  at  the  most;  and  he  that  hath  less  shall 
give  less,  according  to  the  old  custom  of  the  fees. 

c.  3.     But  if  the  heir  of  any  such  be  within  age,  his  lord 


INCIDENTS    OF    FEUDAL   TENURE.  IOI 

shall  not  have  the  ward  of  him,  nor  of  his  land,  before  that 
he  hath  taken  of  him  homage ;  and  after  that  such  an  heir 
hath  been  in  ward,  when  he  is  come  to  full  age.  that  is  to 
say,  to  the  age  of  one  and  twenty  years,  he  shall  have  his 
inheritance  without  relief  and  without  fine ;  so  that,  if  such 
an  heir,  being  within  age,  be  made  knight,  yet,  nevertheless, 
his  land  shall  remain  in  the  keeping  of  his  lord  unto  the 
term  aforesaid. 

c.  6.    Heirs  shall  be  married  without  disparagement. 

c.  15.  We  will  not  give  leave  to  any  one,  for  the  future, 
to  take  an  aid  of  his  own  freemen,  except  for  redeeming  his 
own  body,  and  for  making  his  eldest  son  a  knight,  and  for 
marrying  once  his  eldest  daughter ;  and  not  that  unless  it  be 
a  reasonable  aid. 

c.  39  (1217).  No  freeman  from  henceforth  shall  give 
or  sell  any  more  of  his  land  but  so  that  of  the  residue  of  the 
lands  the  lord  of  the  fee  may  have  the  service  due  to  him 
which  belongeth  to  the  fee. 

MAGNA  CARTA  (1225),  c.  7,  §  6.  No  widow  shall  be 
distrained  to  marry  herself;  nevertheless  she  shall  find  surety 
that  she  shall  not  marry  without  our  license  and  assent  (if 
she  hold  of  us),  nor  without  the  assent  of  the  lord,  if  she 
hold  of  another. 

STAT.  MERTON  (20  HEN.  III.  1235),  c.  7.  If  an  heir, 
of  what  age  soever  he  be,  will  not  marry  at  the  request  of 
his  lord,  he  shall  not  be  compelled  thereunto;  but  when  he 
rcmeth  to  full  age  he  shall  give  to  his  lord  and  pay  him  as 
much  as  any  would  have  given  him  for  the  marriage,  before 
the  receipt  of  his  land,  and  that  whether  he  will  marry  him- 
self, or  not;  for  the  marriage  of  him  that  is  within  age  of 
mere  right  pertaineth  to  the  lord  of  the  fee. 

STAT.  WESTM.  I.  (3  EDW.  I.  1275),  c.  36.  Forasmuch 
as  before  this  time  reasonable  aid  to  make  one's  son  knight, 
or  marry  his  daughter  was  never  put  in  certain,  nor  how 


IO2   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

much  should  be  taken,  nor  at  what  time,  whereby  some 
levied  unreasonable  aid,  and  more  often  than  seemed  neces- 
sary, whereby  the  people  were  sore  grieved :  it  is  provided 
.that  from  henceforth  of  an  whole  knight's  fee  there  be  taken 
but  2os.,  and  of  20  pounjl  land  holden  in  socage  20^.,  and  of 
more,  more,  and  of  less,  less ;  after  the  rate.  And  that  none 
shall  levy  such  aid  to  make  his  son  knight  until  his  son  be 
fifteen  years  of  age ;  nor  to  marry  his  daughter  until  she  be 
of  the  age  of  seven  years.  And  of  that  there  shall  be  made 
mention  in  the  king's  writ,  formed  on  the  same,  when  any 
will  demand  it.  And  if  it  happen  that  the  father,  after  he 
hath  levied  such  aid  of  his  tenants,  die  before  he  hath  mar- 
ried his  daughter,  the  executors  of  the  father  shall  be  bound 
to  the  daughter  for  so  much  as  the  father  received  for  the 
aid.  And  if  the  father's  goods  be  not  sufficient,  his  heir 
shall  be  charged  therewith  unto  the  daughter. 

STAT.  i.  EDW.  III.  ST.  2  (1326),  c.  12.  Whereas,  divers 
people  of  the  realm  complain  themselves  to  be  grieved, 
because  that  lands  and  tenements  which  be  holden  of  the 
king  in  chief,  and  aliened  without  license,  have  been  seized 
heretofore  into  the  king's  lands,  and  holden  as  forfeit ;  the 
king  shall  not  hold  them  as  forfeit  in  such  case,  but  will 
:and  grant  from  henceforth,  of  such  lands  and  tenements 
so  aliened,  there  shall  be  reasonable  fine  taken  in  the  Chan- 
cery, by  due  process. 

LIT.,  §  85.  Homage  is  the  most  honorable  service, 
and  most  humble  service  of  reverence,  that  a  frank  tenant 
may  do  to  his  lord.  For  when  the  tenant  shall  make  homage 
to  his  lord,  he  shall  be  ungirt,  and  his  head  uncovered,  and 
his  lord  shall  sit,  and  the  tenant  shal  kneele  before  him  on 
both  his  knees,  and  hold  his  hands  joyntly  together  betweene 
•the  hands  of  his  lord,  and  shall  say  thus :  I  become  your 
man  from  this  day  forward  of  life  and  limbe,  and  of  earthly 
worship,  and  unto  you  shall  be  true  and  faith  full,  and  beare 
to  you  faith  for  the  tenements  that  I  claime  to  hold  of  you, 


INCIDENTS    OF    FEUDAL   TENURE.  103 

saving  the  faith  that  I  owe  unto  our  soveraigne  lord  the 
king ;  and  then  the  lord  so  sitting  shall  kisse  him. 

§  91.  Fealty  is  the  same  that  fid  el  it  as  is  in  Latine.  And 
when  a  freeholder  doth  fealty  to  his  lord,  he  shal  hold  his 
right  hand  upon  a  booke,  and  shall  say  thus :  Know  ye 
this,  my  lord,  that  I  shall  be  faithfull  and  true  unto  you, 
and  faith  to  you  shall  beare  for  the  lands  which  I  claime 
to  hold  of  you,  and  that  I  shall  lawfully  doe  to  you  the  cus- 
tomes  and  services  which  I  ought  to  do,  at  the  termes  as- 
signed, so  help  me  God  and  his  Saints ;  and  he  shall  kisse  the 
book.  But  he  shall  not  kneele  when  he  maketh  his  fealty, 
r.or  shall  make  such  humble  reverence  as  is  aforesaid  in 
homage. 

§  103.  Tenure  by  homage,  fealty  and  escuage  is  to  hold 
by  knight's  service,  and  it  draweth  to  it  ward,  manage 
and  reliefe.  For  when  such  tenant  dyeth,  and  his  heire 
male  bee  within  the  age  of  21  yeares,  the  lord  shall  have 
the  land  holden  of  him  untill  the  age  of  the  heire  of  21 
yeares ;  the  which  is  called  full  age,  because  such  heire,  by 
intendment  of  the  law,  is  not  able  to  doe  such  knights  ser- 
vice before  his  age  of  21  yeares.  And  also  if  such  heire  be 
not  maried  at  the  time  of  the  death  of  his  ancestor,  then  the 
lord  shall  have  the  wardship  and  mariage  of  him.  But  if 
such  tenant  dieth,  his  heire  female  being  of  the  age  of  14 
yeares  or  more,  then  the  lord  shall  not  have  the  wardship  of 
the  land,  nor  of  the  bodie;  because  that  a  woman  of  such 
age  may  have  a  husband  able  to  doe  knights  service.  But  if 
such  heire  female  be  within  the  age  of  14  yeares,  and  un- 
maried  at  the  time  of  the  death  of  her  ancestor,  the  lord 
shal  have  the  wardship  of  the  land  holden  of  him  until  the 
age  of  such  heire  female  of  16  yeares ;  for  it  is  given  by  the 
statute  of  W.  i,  cap.  22,  that  by  the  space  of  two  yeares  next 
ensuing  the  sayd  14  yeares,  the  lord  may  tender  convenable 
mariage  without  disparagement  to  such  heir  female.  And 
if  the  lord  within  the  said  two  yeares  do  not  tender  such 
mariage,  &c.,  then  she  at  the  end  of  the  said  2  yeares  may 
enter,  and  put  out  her  lord.  But  if  such  heire  female  be 


IO4   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

married  within  the  age  of  14  yeres  in  the  life  of  her  ances- 
ter,  and  her  ancester  dieth,  she  being  within  the  age  of  14 
yeares,  the  lord  shall  have  only  the  wardship  of  the  land 
untill  the  end  of  the  14  yeares  of  age  of  such  heire  female, 
and  then  her  husband  and  she  may  enter  into  the  land,  and 
oust  the  lord.  For  this  is  out  of  the  case  of  the  said  statute, 
insomuch  as  the  lord  cannot  tender  mariage  to  her  which  is 

maried,  &c.    .    .    . 

>  i 

Co.  LIT.,  76,  a.  So  as  regularly  there  be  sixe  incidents  to 
knights  service,  viz.,  two  of  honour  and  submission,  as 
Homage  and  Fealtie,  and  fqure  of  profit,  viz.,  Escuage, 
whereof  he  hath  treated  before,  Ward  (i.e.,  wardship  of  the 
land),  Mariage  and  Relief e ;  of  all  which  our  author  hath 
spoken.  But  there  be  other  incidents  to  knights  service  be- 
sides these ;  as  Aide  pur  faire  fits  chivalier,  ct  aide  pur  file 
marier,  &c.,  which  at  the  common  law  were  uncertain,  and 
were  called  rationabilia  auxilia,  because  if  they  were  exces- 
sive and  unreasonable  in  the  judgment  of  the  court  where 
they  were  questioned,  they  ought  not  to  be  paide :  but  now 
as  well  in  the  king's  case,  as  in  the  case  of  the  subject,  they 
are  by  acts  of  parliament  reduced  to  certaintie,  which  are 
worthy  your  reading. 

LIT.,  §  no.  And  of  heires  males,  which  be  within  the 
age  of  21  yeares  after  the  decease  of  their  ancestor  and  not 
married,  in  this  case  the  lord  shall  have  the  marriage  of  such 
heire,  and  he  shall  have  time  and  space  to  tender  to  him 
covenable  marriage  without  disparagement  within  the  said 
time  of  21  yeares.  And  it  is  to  be  understood  that  the  heire 
in  this  case  may  chuse  whether  he  will  be  married  or  no: 
but  if  the  lord,  which  is  called  guardian  in  chivalry,  tenders 
to  such  heire  covenable  mariage  within  the  age  of  21  yeares 
without  disparagement,  and  the  heire  refuseth  this,  and  doth 
not  marrie  himselfe  within  the  said  age,  then  the  gardein 
shall  have  the  value  of  the  mariage  of  such  heire  male.  But 
if  such  heire  marrieth  himself  within  the  age  of  21  yeares 


INCIDENTS    OF    FEUDAL    TENURE.  105 

against  the  will  of  the  gardein  in  chivalrie,  then  the  gardein 
shall  have  the  double  value  of  the  marriage  by  force  of  the 
statute  of  Merton  aforesaid,  as  in  the  same  statute  is  more 
fully  at  large  comprised. 

§  112.  And  if  a  tenant  which  holdeth  of  his  lord  by 
the  service  of  a  whole  knight's  fee,  dieth,  his  heire  then 
being  of  full  age,  sell,  of  21  yeares,  then  the  lord  shall  have 
loos,  for  a  relief e,  and  of  the  heire  of  him  which  holds  by 
the  moitie  of  a  knight's  fee,  $os.  and  of  him  which  holds 
by  the  fourth  part  of  a  knight's  fee  2$s.,  and  so  he  which 
holds  more,  more,  and  which  lesse,  lesse. 

§  123.  Also,  in  such  tenures  in  socage,  if  the  tenant 
have  issue  and  die,  his  issue  being  within  the  age  of  14 
yeares,  then  the  next  friend  of  that  heire,  to  whom  the 
inheritance  cannot  descend,  shall  have  the  wardship  of  the 
land  and  of  the  heire  untill  the  age  of  14  yeares,  and  such 
gardein  is  called  gardein  in  socage.  For  if  the  land 
discend  to  the  heir  of  the  part  of  the  father,  then  the  mother, 
or  other  next  cousin  of  the  part  of  the  mother,  shall  have 
the  wardship.  And  if  land  discend  to  the  heire  of  the  part 
of  the  mother,  then  the  father  or  next  friend  of  the  part  of 
the  -father  shall  have  the  wardship  of  such  lands  or  tene- 
ments. And  when  the  heyre  cometh  to  the  age  of  14  yeares 
complete,  he  may  enter  and  oust  the  gardian  in  socage,  and 
occupy  the  land  himselfe,  if  he  will.  And  such  gardian  in 
socage  shal  not  take  any  issues  or  profits  of  such  lands  or 
tenements  to  his  own  use,  but  only  to  the  use  and  profit  of 
the  heire ;  and  of  this  he  shal  render  an  account  to  the  heire, 
when  it  pleaseth  the  heire  after  he  accomplished!  the  age  of 
14  yeares.  But  such  gardian  upon  his  account  shall  have  al- 
lowance of  all  his  reasonable  costs  and  expenses  in  all 
things,  &c. 

Co.  LIT.,  88,  b.  And  therefore  gardian  in  socage  shall 
not  forfeit  his  interest  by  outlawrie  or  attainder  of  felony  or 
treason ;  because  he  hath  nothing  to  his  own  use,  but  to  the 
use  of  the  heire. 


IO6   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

LIT.,  §  125.  Also,  if  gardian  in  chivalrie  makes  his 
executors  and  die,  the  heire  being  within  age,  &c.,  the 
executors  shall  have  the  wardship  during  the  nonage,  &c. 
But  if  the  gardian  in  socage  make  his  executors  and  die,  the 
heire  being  within  the  age  of  14  yeares,  his  executors  shall 
not  have  the  wardship ;  but  another  next  friend,  to  whom 
the  inheritance  cannot  descend,  shall  have  the  wardship,  &c. 
And  the  reason  of  this  diversitie  is,  because  the  gardian  in 
chivalrie  hath  the  wardship  to  his  owne  use,  and  the  gardian 
in  socage  hath  not  the  wardship  to  his  owne  use,  but  to  the 
use  of  the  heire.  And  in  this  case  where  the  gardian  in 
socage  dyeth  before  any  account  made  by  him  to  the  heire, 
of  this  the  heire  is  without  remedy,  for  that  no  writ  of  ac- 
count lieth  against  the  executors,  but  for  the  king  onely. 

§  126.  Also,  the  lord,  of  whom  the  land  is  holden  in 
socage,  after  the  decease  of  his  tenant  shall  have  reliefe  in 
this  manner.  If  the  tenant  holdeth  by  fealty  and  certaine 
rent  to  pay  yeerely,  &c.,  if  the  tearmes  of  payment  be  to  pay 
at  two  termes  of  the  yeare,  or  at  4  termes  in  the  yeare,  the 
lord  shal  have  of  the  heire  his  tenant  as  much  as  the  rent 
amounts  unto,  which  he  payeth  yearly.  As  if  the  tenant 
holds  of  his  lord  by  fealty,  and  tenne  shillings  rent  payable 
at  certaine  terms  of  the  yeare,  then  the  heire  shall  pay  to  the 
lord  ten  shillings  for  relief  beside  the  tenne  shillings  which 
he  payeth  for  the  rent. 

Co.  LIT.,  91,  a.  But  it  is  to  be  noted  that  beside  relief, 
whereof  Littleton  here  speaketh,  there  belongeth  to  a  tenure 
in  socage  of  common  right  aid  for  the  making  of  his  eldest 
son  a  knight  at  the  age  of  fifteene  years,  and  to  marry  his 
daughter  at  the  age  of  7  yeares. 

LIT.,  §  131.  And  for  that  fealtie  is  incident  to  all  man- 
ner of  tenures,  but  to  the  tenure  in  frankalmoigne  (as  shall 
be  said  in  the  tenure  of  frankalmoigne),  and  for  that  the 
lord  would  not  at  the  beginning  of  the  tenure  have  any 
other  service  but  fealty,  it  is  reason,  that  a  man  may  hold 


INCIDENTS    OF    FEUDAL   TENURE. 

of  his  lord  by  fealty  onely;  and  when  he  hath  done  his 
fealty  he  hath  done  all  his  services. 

Co.  LIT.,  93,  a.  But  where  the  tenure  is  by  fealty  only, 
there  is  no  reliefe  due  for  the  cause  abovesaid. 

Co.  LITV  13,  a.  Escheat,  eschaeta,  is  a  word  of  art,  and 
derived  from  the  French  word  escheat  (id  est),  cadere, 
ex  cider  e  or  ac  cider  e,  and  signifyeth  properly  when  by  acci- 
dent the  lands  fall  to  the  lord  of  whom  they  are  holden,  in 
which  case  we  say  the  fee  is  escheated.  And  therefore,  of 
some,  escheats  are  called  excadentiae  or  terre  excadeniiales. 
Dominus  verb  capitalis  loco  haeredis  habetur,  quoties  per 
dcfectum  vel  delict um  extinguitur  sanguis  sni  tenentis.  Loco 
haeredis  et  haberi  poterit  cui  per  modum  donationis  fit 

reversio  cujusque  tenementi So  as  an  escheat 

doth  happen  two  manner  of  wayes,  ant  per  defectum 
sanguinis,  i.  e.,  for  default  of  heir,  aut  per  delictum  tenentis, 
i.e.,  for  felonie,  and  that  is  by  judgment  three  manner  of 
waies,  aut  quia  suspenses  per  collum,  aut  quia  abjuravit 
regnum,  aut  quia  title gatus  est.  And  therefore,  they  which 
are  hanged  by  martiall  law  in  furore  belli  forfeit  no  lands ; 
and  so  in  like  cases  escheats  by  the  civilians  are  called 
caduca. 

i  POLL.  &  MAIT.,  HIST.  ENG.  LAW.,  332.  Escheat  and 
Forfeiture. — In  the  background,  but  ever  ready  to  become 
prominent,  stands  the  lord's  right  to  escheats.  This  forms 
as  it  were  a  basis  for  all  his  other  rights.  The  superiority 
which  he  always  has  over  the  land  may  at  any  time  become 
once  more  a  full  ownership  of  it.  Though  he  has  given  the 
land  to  the  tenant  and  his  heirs,  still  there  may  well  be  a 
failure  of  heirs,  for  the  tenant  cannot  institute  an  heir. 
Only  God  makes  heirs ;  and  in  this  case  the  land  falls  to, 
escheats  (excadere}  to  the  lord.  Already  in  Glanvill's  day 
a  lawyer  may  sometimes  speak  of  the  lord  as  the  tenant's 
ultimus  heres;  but  such  a  phrase  hardly  expresses  the  law. 


IO8   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

When  land  escheats  the  lord's  superiority  swells  into 
simple  ownership;  all  along  he  has  had  rights  in  the  land. 
Nor  is  a  failure  of  heirs  the  only  cause  of  an  escheat.  If  the 
tenant  is  outlawed  or  convicted  of  felony,  then,  after  the  king 
has  exercised  the  very  ancient  right  of  wasting  the  crim- 
inal's land  for  year  and  day,  the  tenement  returns  to  its 
lord.  A  distinction  is  established  between  treason  and  fel- 
ony; if  a  tenant  commits  treason  all  his  lands,  of  whomso- 
ever they  were  holden,  are  forfeited  to  the  king,  while  the 
felon's  lands  escheat  to  his  lord.  How  far  back  this  dis- 
tinction can  be  traced  seems  doubtful ;  but  John  and  his  suc- 
cessors apparently  insisted  upon  it  when  they  enriched 
themselves  by  seizing  the  terrae  Normannorum,  the  English 
lands  of  those  who  preferred  to  be  Frenchmen  rather  than 
Englishmen  when  the  victories  of  Philip  Augustus  forced 
upon  them  the  choice  between  two  nationalities. 


CHAPTER  III. 

THE  DEFEUDALIZATION  OF  TENURES. 

i  POLL.  &  MAIT.,  HIST.  ENG.  LAW,  336.  We  are  now  in 
a  position  to  foresee  that  of  the  four  great  free  tenures  one 
is  destined  to  grow  at  the  expense  of  the  rest.  For  a 
moment  it  might  be  thought  that  the  trenchant  statute  of 
1290,  the  Quia  emptores  terrarum,  would  stereotype  the  ten- 
ures forever.  To  some  extent  this  is  true  in  law,  but  only 
to  some  extent.  Even  after  the  statute  a  new  tenure  might 
sometimes  be  created.  Every  feoffment  made  by  a  tenant  in 
frankalmoin  in  favor  of  a  layman  would  create  a  tenure 
between  the  donee  and  the  donor's  lord  which  could  not  be 
frankalmoin,  since  the  donee  was  a  layman,  and  which  was 
reckoned  a  tenure  in  socage ;  thus  in  a  perfectly  regular  way 
socage  would  grow  at  the  expense  of  frankalmoin.  We  have 
seen  also  that  in  the  course  of  the  thirteenth  century  many 
of  the  serjeanties  were  deliberately  commuted  for  less 
archaic  tenures,  in  some  cases  by  the  consent  of  both  par- 
ties, still  more  often  against  the  tenant's  will ;  he  had  put 
himself  into  the  wrong  by  alienating  without  the  king's 
license,  and  the  king  exercised  the  right  of  "  arrenting  the 
serjeanty."  But  we  will  here  speak  of  changes  less  defi- 
nitely made.  When  once  it  was  established  that  the  little  ser- 
jeanties gave  the  king  no  prerogative  wardship,  "  petty  ser- 
jeanty "  came  to  be  regarded  as  but  "  socage  in  effect."  A 
similar  cause  gave  rise  to  the  doctrine  that  tenure  of  a 
mesne  lord  is  never  tenure  by  serjeanty ;  the  rights  of  a 
mesne  lord  to  the  wardship  and  marriage  of  his  tenant  by 
serjeanty  seem  to  have  become  doubtful,  and  to  have  finally 
disappeared,  and  by  this  time  the  term  socage  already  cov- 
ered so  heterogeneous  a  mass  of  tenures  that  it  could  be 
easily  stretched  yet  a  little  farther  so  as  to  include  what 


IIO   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

Bracton  would  certainly  have  called  serjeanties.  Again, 
there  can  be  little  doubt  that  a  very  large  number  of  military 
tenures  became  tenures  in  socage,  and  this  without  any  one 
observing  the  change.  In  Bracton's  day  the  test  of  military 
tenure  is  the  liability  to  scutage,  and,  as  already  said,  the 
peasant  or  yeoman  very  often  had  to  pay  it;  if  he  had  not 
to  pay  it,  this  was  because  his  lord  had  consented  to  bear 
the  burden.  In  Edward  I.'s  day  scutage  was  becoming, 
under  his  grandson  it  became,  obsolete.  There  was  nothing 
then  in  actual  fact  to  mark  off  the  services  of  the  yeoman 
who  was  liable  to  pay  scutage  as  well  as  to  pay  rent,  from 
those  of  the  yeoman  who  was  free  even  in  law  from  this 
never  collected  tax.  The  one  was  theoretically  a  military 
tenant,  the  other  was  not ;  in  the  one  case  the  lord  might 
have  claimed  wardship  .and  marriage,  in  the  other  he  could 
not ;  but  then  we  have  to  observe  that,  if  the  tenant  held  at  a 
full  or  even  substantial  rent,  wardship  and  marriage  would 
be  unprofitable  rights.  The  lord  wanted  rent-paying  ten- 
ants ;  he  did  not  want  land  thrown  on  his  hands  together 
with  a  troop  of  girls  and  boys  with  claims  for  food  and 
clothing.  Thus,  scutage  being  extinct,  wardships  and  mar- 
riages unprofitable,  mere  oblivion  would  do  the  rest ;  many 
a  tenure  which  had  once  been,  at  least  in  name,  a  military 
tenure  would  become  socage.  Thus  socage  begins  to  swal- 
low up  the  other  tenures,  and  preparation  is  already  made 
for  the  day  when  all,  or  practically  all,  tenants  will  hold  by 
the  once  humble  tenure  of  the  sokemanni. 

2  BL.  COM.,  75-77.  For  the  present  I  have  only  to  ob- 
serve that  by  the  degenerating  of  knight-service,  or  personal 
military  duty,  into  escuage,  or  pecuniary  assessments,  all 
the  advantages  (either  promised  or  real)  of  the  feodal  con- 
stitution were  destroyed,  and  nothing  but  the  hardships  re- 
mained. Instead  of  forming  a  national  militia  composed 
of  barons,  knights,  and  gentlemen,  bound  by  their  interest, 
their  honor,  and  their  oaths  to  defend  their  king  and  coun- 
try, the  whole  of  this  system  of  tenures  now  tended  to  noth- 


THE    DEFEUDALIZATION    OF    TENURES.  Ill 

ing  else  but  a  wretched  means  of  raising  money  to  pay  an 
army  of  occasional  mercenaries.  In  the  mean  time,  the  fam- 
ilies of  all  our  nobility  and  gentry  groaned  under  the  intol- 
erable burthens  which  (in  consequence  of  the  fiction 
adopted  after  the  Conquest)  were  introduced  and  laid  upon 
them  by  the  subtlety  and  finesse  of  the  Norman  lawyers. 
For,  besides  the  scutages  to  which  they  were  liable  in  defect 
of  personal  attendance,  which,  however,  were  assessed  by 
themselves  in  parliament,  they  might  be  called  upon  by  the 
king  or  lord  paramount  for  aids,  whenever  his  eldest  son 
was  to  be  knighted,  or  his  eldest  daughter  married ;  not  to 
forget  the  ransom  of  his  own  person.  The  heir,  on  the 
death  of  his  ancestor,  if  of  full  age,  was  plundered  of  the 
first  emoluments  arising  from  his  inheritance,  by  way  of 
relief  and  primer  seisin;  and  if  under  age,  of  the  whole  of  his 
estate  during  infancy.  And  then,  as  Sir  Thomas  Smith  x 
very  feelingly  complains,  "  when  he  came  to  his  own,  after 
he  was  out  of  wardship,  his  woods  decayed,  houses  fallen 
down,  stock  wasted  and  gone,  lands  let  forth  and  ploughed 
to  be  barren,"  to  reduce  him  still  further,  he  was  yet  to  pay 
half  a  year's  profits  as  a  fine  for  suing  out  his  livery;  and 
also  the  price  or  value  of  his  marriage,  if  he  refused  such 
wife  as  his  lord  and  guardian  had  bartered  for,  and  imposed 
upon  him ;  or  twice  that  value  if  he  married  another  woman. 
Add  to  this  the  untimely  and  expensive  honor  of  knight- 
hood, to  make  his  poverty  more  completely  splendid.  And 
when,  by  these  deductions,  his  fortune  was  so  shattered  and 
ruined  that  perhaps  he  was  obliged  to  sell  his  patrimony,  he 
had  not  even  that  poor  privilege  allowed  him,  without  pay- 
ing an  exorbitant  fine  for  license  of  alienation. 

A  slavery  so  complicated,  and  so  extensive  as  this,  called 
aloud  for  a  remedy  in  a  nation  that  boasted  of  its  freedom. 
Palliatives  were  from  time  to  time  applied  by  successive 
acts  of  parliament,  which  assuaged  some  temporary  griev- 
ances. Till  at  length  the  humanity  of  King  James  I.  con- 
sented, in  consideration  of  a  proper  equivalent,  to  abolish 
'Commonw.  1.  3,  c.  3. 


112   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

them  all;  though  the  plan  proceeded  not  to  effect;  in  like 
manner  as  he  had  formed  a  scheme,  and  begun  to  put  it  in 
execution,  for  removing  the  feodal  grievance  of  heritable 
jurisdiction  in  Scotland,  which  has  since  been  pursued  and 
effected  by  the  statute  Geo.  II.,  ch.  43.  King  James's  plan 
for  exchanging  our  military  tenures  seems  to  have  been 
nearly  the  same  as  that  whi^h  has  been  since  pursued ;  only 
with  this  difference,  that,  by  way  of  compensation  for  the 
loss  which  the  Crown  and  other  lords  would  sustain,  an  an- 
nual fee-farm  rent  was  to  have  been  settled  and  inseparably 
annexed  to  the  Crown  and  assured  to  the  inferior  lords,  pay- 
able out  of  every  knight's  fee  within  their  respective  seig- 
niories. An  expedient  seemingly  much  better  than  the 
hereditary  excise,  which  was  afterward  made  the  principal 
equivalent  for  these  concessions.  For  at  length  the  military 
tenures,  with  all  their  heavy  appendages  (having  during  the 
usurpation  been  discontinued),  were  destroyed  at  one  blow 
by  the  statute  12  Car.  II.  ch.  24,  which  enacts,  "  that  the 
court  of  wards  and  liveries,  and  all  wardships,  liveries, 
primer  seisins,  and  ousterlemains,  values  and  forfeitures  of 
marriage,  by  reason  of  any  tenure  of  the  king  or  others,  be 
totally  taken  away.  And  that  all  fines  for  alienation,  tenures 
by  homage,  knight-service,  and  escuage,  and  also  aids  for 
marrying  the  daughter  or  knighting  the  son,  and  all  tenures 
of  the  king  in  capite,  be  likewise  taken  away.  And  that  all 
sorts  of  tenures,  held  of  the  king  or  others,  be  turned  into 
free  and  common  socage ;  save  only  tenures  in  frankalmoign, 
copyhold,  and  the  honorary  services  (without  the  slavish 
part)  of  grand  serjeanty."  A  statute,  which  was  a  greater 
acquisition  to  the  civil  property  of  this  kingdom  than  even 
magna  carta  itself;  since  that  only  pruned  the  luxuriances 
that  had  grown  out  of  the  military  tenures  and  thereby  pre- 
served them  in  vigor;  but  the  statute  of  King  Charles  ex- 
tirpated the  whole,  and  demolished  both  root  and  branches. 

STAT.  12  CAR.  II.  (1660),  c.  24.    An  act  taking  azvay  the 
Court  of  Wards  and  Liveries  and  Tenures  in  Capite,  and  by 


THE    DEFEUDALIZATION    OF    TENURES.  113 

Knight-Service,  and  Purveyance,  and  for  settling  a  Revenue 
upon  his  Majesty  in  lieu  thereof. 

Whereas  it  hath  been  found  by  former  experience  that 
the  Court  of  Wards  and  Liveries  and  tenures  by  knight-ser- 
vice either  of  the  king  or  others,  or  by  knight-service  in  cap- 
ite,  or  socage  in  capite  of  the  king,  and  the  consequents  upon 
the  same,  have  been  much  more  burthensome,  grievous  and 
prejudicial  to  the  kingdom  than- they  have  been  beneficial  to 
the  king.  And  whereas  since  the  intermission  of  the  said 
court,  which  hath  been  from  the  four  and  twentieth  day  of 
February,  which  was  in  the  year  of  our  Lord  one  thousand 
six  hundred  forty  and  five,  many  persons  have  by  will  and 
otherwise  made  disposal  of  their  lands  held  by  knight-ser- 
vice, whereupon  divers  questions  might  possibly  arise  unless 
some  seasonable  remedy  be  taken  to  prevent  the  same ;  Be  it 
therefore  enacted  by  the  King  our  Sovereign  Lord  with  the 
assent  of  the  Lords  and  Commons  in  Parliament  assembled, 
and  by  the  authority  of  the  same,  and  it  is  hereby  enacted,' 
That  the  Court  of  Wards  and  Liveries,  and  all  wardships, 
liveries,  primer  seisins  and  ousterlemains,  values  and  for- 
feitures of  marriages,  by  reason  of  any  tenure  of  the  King's 
Majesty,  or  of  any  other  by  knight-service,  and  all  mean 
rates,  and  all  other  gifts,  grants,  and  charges,  incident  or 
arising  for  or  by  reason  of  wardships,  liveries,  primer  seisins, 
or  ousterlemains  be  taken  away  and  discharged,  and  are 
hereby  enacted  to  be  taken  away  and  discharged,  from  the 
said  twenty-fourth  day  of  February,  one  thousand  six  hun- 
dred forty  and  five ;  any  law,  statute,  custom,  or  usage  to  the 
contrary  hereof  in  any  wise  notwithstanding.  And  that  all 
fines  for  alienations,  seizures,  and  pardons  for  alienations, 
tenure  by  homage,  and  all  charges  incident  or  arising  for 
or  by  reason  of  wardship,  livery,  primer  seisin,  or  ouster- 
lemain,  or  tenure  by  knight-service,  escuage,  and  also  aide 
pur  file  marrier,  et  pur  faire  fits  chivalier,  and  all  other 
charges  incident  thereunto,  be  likewise  taken  away  and  dis- 
charged from  the  said  twenty-fourth  day  of  February,  one 
thousand  six  hundred  forty  and  five :  any  law,  statute,  cus- 


I  14   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

torn,  or  usage  to  the  contrary  hereof  in  any  wise  notwith- 
standing. And  that  all  tenures  by  knight-service  of  the 
king,  or  of  any  other  person,  and  by  knight-service  in 
capite,  and  by  socage  in  capite  of  the  king,  and  the  fruits  and 
consequents  thereof,  happened  or  which  shall  or  may  here- 
after happen  or  arise  thereupon  or  thereby,  be  taken  away 
and  discharged ;  any  law,  statute,  custom,  or  usage  to  the 
contrary  hereof  in  any  wise  notwithstanding",  and  all  ten- 
ures of  any  honors,  manors,  lands,  tenements,  or  heredita- 
ments, of  any  estate  of  inheritance  at  the  common  law,  held 
either  of  the  king  or  of  any  other  person  or  persons,  bodies 
politic  or  corporate,  are  hereby  enacted  to  be  turned  into 
free  and  common  socage,  to  all  intents  and  purposes,  from 
the  said  twenty-fourth  day  of  February,  one  thousand  six 
hundred  forty  and  five,  and  shall  be  so  construed,  adjudged 
and  deemed  to  be  from  the  said  twenty-fourth  day  of  Febru- 
ary, one  thousand  six  hundred  forty  and  five,  and  forever 
hereafter,  turned  into  free  and  common  socage ;  any  law, 
statute,  custom,  or  usage  to  the  contrary  hereof  in  any  wise 
notwithstanding. 

2.  And  that  the  same  shall  forever  hereafter  stand  and  be 
discharged  of  all  tenure  by  homage,  escuage,  voyages  royal, 
and  charges  for  the  same,  wardships  incident  to  tenure  by 
knight's  service,  and  values  and  forfeitures  of  marriage,  and 
all  other  charges  incident  to  tenure  by  knight-service,  and 
of  and  from  aide  pur  file  marrier,  and  aide  pur  faire  fits  chiv- 
alier;  any  law,  statute,  usage  or  custom  to  the  contrary  in 
any  wise  notwithstanding.  And  that  all  conveyances  and 
devises  of  any  manors,  lands,  tenements,  and  hereditaments, 
made  since  the  said  twenty-fourth  day  of  February,  shall  be 
expounded  to  be  of  such  effect  as  if  the  same  manors,  lands, 
tenements,  and  hereditaments  had  been  then  held  and  con- 
tinued to  be  holden  in  free  and  common  socage  only;  any 
law,  statute,  custom,  or  usage,  to  the  contrary  hereof  in  any 
wise  notwithstanding. 


THE   DEFEUDALIZATION    OF   TENURES.  115 

4.  And  be  it  further  enacted  by  the  authority  aforesaid, 
That   all   tenures   hereafter   to  be   created   by   the    King's 
Majesty,  his  heirs  or  successors,  upon  any  gifts  or  grants  of 
any    manors,  lands,  tenements,  or    hereditaments,  of    any 
estate  of  inheritance  at  the  common  law,  shall  be  in  free  and 
common  socage,  and  shall  be  adjudged  to  be  in  free  and 
common  socage  only,  and    not    by    knight-service,  or    in 
capite,  and  shall  be  discharged  of  all  wardship,  value  and 
forfeiture  of  marriage,  livery,  primer  seisin,  ousterlemain, 
aide  pur  faire  fits  chivalier  and  pur  file  marrier ;  any  law, 
statute  or  reservation  to  the  contrary  thereof  in  any  wise 
notwithstanding. 

5.  Provided  nevertheless,  and  be  it  enacted,  That  this  act, 
or  anything  herein  contained,  shall  not  take  away,  nor  be 
construed  to  take  away,  any  rents  certain,  heriots,  or  suits 
of  court,  belonging  or  incident  to  any  former  tenure  now 
taken  away  or  altered  by  virtue  of  this  Act,  or  other  services 
incident  or  belonging  to  tenure  in  common  socage  due  or 
to  grow  due  to  the  King's  Majesty,  or  mean  lords,  or  other 
private  person,  or  the  fealty  and  distresses  incident  there- 
unto ;  and  that  such  relief  shall  be  paid  in  respect  of  such 
rents  as  is  paid  in  case  of  a  death  of  a  tenant  in  common 
socage. 

6.  Provided   always,   and  be   it  enacted,   That   anything 
herein  contained  shall  not  take  away,  nor  be  construed  to 
take  away  any  fines  for  alienation  due  by  particular  cus- 
toms of  particular  manors  and  places,  other  than  fines  for 
alienations  of  lands  or  tenements  holden  immediately  of  the. 
king  in  capite. 

7.  Provided  also,  and  be  it  further  enacted,  That  this  Act,, 
or  anything  herein  contained,  shall  not  take  away,  or  be 
construed  to  take  away,  tenures  in  frank-almoign,  or  to  sub- 
ject them  to  any  greater  or  other  services  than  they  now  are  ; 
nor  to  alter  or  change  any  tenure  by  copy  of  court-roll,  or 
any  services  incident  thereunto ;  nor  to  take  away  the  hon- 
orary services  of  grand  serjeanty,  other  than  of  wardship,, 
marriage,  and  value  of  forfeiture  of  marriage,  escuage,  voy- 


Il6   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

ages  royal,  and  other  charges  incident  to  tenure  by  knight- 
service  ;  and  other  than  aide  pur  faire  fits  chivalier,  and  aide 
pur  file  marrier. 

Co.  LIT.,  85,  a.  By  the  12  Cha.  2,  ch.  24,  tenure  by 
knight's  service,  whether  of  the  king  or  of  a  common  per- 
son, together  with  all  its  oppressive  fruits  and  consequences, 
as  also  those  of  socage  in  capite,  is  wholly  taken  away ;  and 
every  such  tenure  is  converted  into  free  and  common  socage. 
The  same  statute  enacts,  that  all  tenures  which  should  after- 
ward be  created  by  the  king,  should  be  in  free  and  common 
socage  only.  Nothing  can  be  more  full  in  expression  than 
this  act ;  for  besides  generally  abolishing  tenure  by  knight's 
service,  and  the  consequences  peculiar  to  that  tenure  and 
socage  in  capite,  it  descends  into  particulars  with  a  redun- 
dancy of  words,  which  can  only  be  accounted  for  by  the  ex- 
treme anxiety  to  extirpate  completely  the  evils  the  legisla- 
ture had  under  contemplation,  for  which  purpose  it  might 
be  deemed  most  safe  to  attack  them  in  every  shape.  We 
have  already  observed  in  some  former  notes,  that  homage, 
escuage,  and  the  aids  pur  file  marrier  and  pur  faire  fits  chiv- 
alier are  expressly  mentioned.  It  remains  to  add,  that  the 
statute,  after  taking  away  the  court  of  wards  and  liveries, 
enumerates  wardships,  liveries,  primer  seisins  or  ousterle- 
mains,  values  and  forfeitures  of  marriages,  and  fines,  seiz- 
ures, and  pardons  for  alienation,  and  sweeps  away  the  whole. 
But  the  act  preserves  rents  certain,  heriots,  suits  of  court, 
and  other  services  incident  to  common  socage  and  fealty; 
and  also  fines  for  alienation  due  by  the  customs  of  particu- 
lar manors,  unless  such  fines  are  for  lands  in  capite.  Reliefs 
for  lands,  of  which  the  tenure  is  converted  into  common 
socage,  are  also  saved  in  some  instances;  for  the  clause 
which  preserves  rents  certain  provides  that  such  relief  shall 
be  paid  in  respect  of  such  rents,  as  is  paid  on  the  death  of  a 
tenant  in  common  socage.  From  this  clause  it  seems,  that 
there  can  be  no  relief  out  of  lands  which  the  statute  changed 
into  socage.  unless  where  a  quit  rent  is  also  payable ;  and  the 


THE    DEFEUDALIZATION    OF    TENURES.  I  I/ 

reason  of  thus  expressing  the  act  will  appear  by  considering 
that  a  year's  rent  is  the  relief  for  lands  holden  by  common 
socage,  and  consequently  is  never  due  out  of  lands  which 
are  not  subject  to  a  rent,  unless  by  special  custom,  or  express 
reservation. — Hargrove's  note,  55. 

Co.  LIT.,  93,  b.  It  may  be  proper  to  conclude  this  Chap- 
ter of  Socage  by  pointing  out  the  several  changes  made  in 
the  tenure  of  socage  by  the  statute  of  the  12  Cha.  2,  ch.  24, 
so  often  mentioned.  I.  It  takes  away  the  aids  pur  file 
marrier  and  pur  faire  fits  chivalier,  which  were  incident  to 
all  socage-tenures.  2.  It  relieves  socage  in  capite  from  the 
burden  of  the  king's  primer  seisin  and  of  fines  of  alienation 
to  the  king;  to  both  of  which  socage  in  capite  was  equally 
liable  with  tenure  by  knight's  service  in  capite,  though,  not 
so  to  wardship.  3.  It  extends  the  father's  power  of  appoint- 
ing guardians  by  deed  or  will,  which  by  the  4  and  5  Phil, 
and  Mar.  (the  first  statute  conferring  such  a  power)  was  re- 
stricted to  female  children,  to  children  of  both  sexes,  and 
thus  supplied  the  means  of  still  further  preventing  guardian- 
ship in  socage.  In  all  other  respects  the  tenure  in  socage 
seems  to  be  under  the  same  circumstances,  and  attended  with 
the  same  consequences,  as  it  was  before  the  restoration. 
But  the  statute  of  Charles  II.  goes  further  than  the  mere 
alteration  of  socage ;  and  having  thus  reformed  and  im- 
proved this  favorite  tenure,  in  the  next  place  provides  for  the 
extension  of  it  throughout  the  kingdom.  This  the  statute 
effectually  secures,  by  converting  into  socage  all  tenures  by 
knight's  service  and  by  taking  from  the  Crown  the  power 
of  creating  any  other  tenure  than  socage  in  future. — Har- 
grove's note,  95. 

REAL  PROP.  COMRS.,  THIRD  REP.  (1833),  7.  But  though 
the  ancient  doctrine,  that  all  land  is  held  of  a  superior  lord, 
ought  in  our  opinion  to  remain,  we  consider  the  variety  of 
tenures  still  subsisting  an  unqualified  evil ;  and  we  think  that 
everything  should  be  done  which  is  consistent  with  the 


Il8   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

rights  of  property,  to  reduce  them  all  to  one  simple  tenure, 
.stripped  of  all  local  customs,  and  attended  by  the  same  rules, 
as  to  enjoyment  and  transmission.  The  tenures  now  sub- 
sisting are : 

1.  Frankalmoign,  and  by  Divine  Service. 

2.  Grand  Serjeanty,  as  far  as  honble.  services  are  con- 
cerned. 

3.  Free  and  Common  Socage. 

4.  Socage,  subject  to  the  'custom  of  Borough  English. 

5.  Socage,  subject  to  the  custom  of  Gavel-kind. 

6.  Ancient  Demesne. 

7.  Copyhold. 

8.  Customary  Freehold. 

Free  and  common  socage  is  fortunately  the  tenure  by 
Which  the  great  bulk  of  real  property  in  England  is  now 
held.  In  the  time  of  Lord  Coke  copyhold  tenure  was  much 
more  common  than  at  present,  and  the  land  that  was  not  of 
base  tenure  was  principally  held  in  chivalry.  To  the  en- 
franchisement of  copyholds  and  the  abolition  of  military 
tenures  may,  we  conceive,  be  ascribed  some  portion  of  the 
agricultural  improvement  and  increase  of  public  wealth 
which  have  since  taken  place ;  and  we  consider  it  a  matter 
of  great  importance  that  all  lay  fees  shoulu  be  held  by  free 
and  common  socage. 

This  tenure  has  all  the  advantages  of  allodial  ownership. 
The  dominium  utile  vested  in  the  tenant  comprises  the  sole 
and  undivided  interest  in  the  soil.  Escheat  is  the  only 
material  incident  of  this  tenure  beneficial  to  the  lord ;  and, 
while  there  is  an  heir  or  devisee,  he  can  in  no  way  interfere. 

The  tenant  in  fee  simple  of  socage  land  can  of  his  own 
authority  create  in  it  any  estates  and  interests  not  contrary 
to  the  general  rules  of  law ;  he  can  alien  it  entirely  or  devise 
it  to  whom  he  pleases,  and  the  alienee  or  devisee  takes 
directly  from  him,  so  that  the  title  is  complete  without  the 
concurrence  or  privity  of  the  lord. 

WILLIAMS,  REAL  PROP.   (I/TH  ED.),  60-63.     Since  the 


THE    DEFEUDALIZATIOX    OF    TENURES.  1 19 

year  1645,  therefore,  the  only  free  tenures  existing  have 
been  the  lay  tenure  of  free  and  common  socage  and  the 
spiritual  tenure  of  frankalmoign.  In  modern  times  the  in- 
cidents which  mark  the  relation  of  lord  and  tenant  of  an 
estate  in  fee  simple  held  in  socage  are  of  rare  occurrence. 
Thus  a  rent  is  not  now  often  paid  in  respect  of  the  tenure 
of  an  estate  in  fee  simple.  When  it  is  paid,  it  is  usually 
called  quit  rent,  and  is  almost  always  of  a  very  trifling 
amount ;  the  change  in  the  value  of  money  in  modern  times 
will  account  for  this.  The  relief  of  one  year's  quit  rent,  pay- 
able by  the  heir  on  the  death  of  his  ancestor,  in  the  case  of  a 
fixed  quit  rent,  was  not  abolished  by  the  statute  of  Charles, 
and  such  relief  is  accordingly  still  due.  Suit  of  Court  also 
is  still  obligatory  on  tenants  of  estates  in  fee  simple,  held 
of  any  manor  now  existing.  And  the  oath  of  fealty  still 
continues  an  incident  of  tenure;  but  in  practice  it  is  never 
exacted.  There  is,  however,  one  incident  of  tenure  still  re- 
maining, which  is  occasionally  productive  of  substantial  ad- 
vantage to  the  lord.  The  lands  of  a  tenant  in  fee  simple  re- 
main liable  to  escheat  to  the  lord  of  the  fee  on  failure  of  the 
tenant's  heirs.  At  the  present  day  failure  of  heirs  can  only 
occur  from  natural  causes,  for  an  act  of  the  year  1870  abol- 
ished all  attainder,  forfeiture  or  escheat  upon  judgment  for 
treason  or  felony.1  When,  therefore,  a  tenant  in  fee  simple 
dies,  without  having  alienated  his  lands  in  his  lifetime  or 
by  his  will  (either  of  which  will  prevent  escheat),  and 
without  leaving  any  blood  relation  to  succeed  him  as  his 
heir,  such  lands  will  fall  in  to  the  lord  of  whom  they  were 
held.  Bastardy  is  the  most  usual  cause  of  the  failure  of 
heirs ;  for  a  bastard  is  in  law  nullius  filius;  and,  being  no- 
body's son,  he  can  consequently  have  no  brother  or  sister,  or 
any  other  heir  than  an  heir  of  his  body.  If  such  a  person, 
therefore,  were  to  purchase  lands,  that  is,  to  acquire  an 
estate  in  fee  simple  in  them,  and  were  to  die  possessed  of 
them  without  having  made  a  will  and  without  leaving  any 
issue,  the  lands  would  escheat  to  the  lord  of  the  fee,  for 
1  Stat.  33  &  34  Viet.,  c.  23,  s.  i. 


I2O   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

want  of  heirs.  When  an  escheat  occurs,  the  Crown  most 
frequently  obtains  the  lands  escheated,  in  consequence  of 
the  before-mentioned  rule,  that  the  Crown  is  the  lord  par- 
amount of  all  the  lands  in  the  kingdom.  But  if  there  should 
be  any  lord  of  a  manor,  or  other  person,  who  could  prove 
that  the  estate  so  terminated  was  held  of  him,  he,  and  not 
the  Crown,  would  be  entitled.  In  former  times  there  were 
many  such  mesne  or  intermediate  lords,  as  we  have  seen. 
But  now  the  fruits  and  incidents  of  tenure  of  estates  in  fee 
simple  are  so  few  and  rare  that  many  such  estates  are  con- 
sidered as  held  directly  of  the  Crown,  for  want  of  proof  as 
to  who  is  the  intermediate  lord ;  and  the  difficulty  of  proof  is 
increased  by  the  fact  before  mentioned,  that,  since  the  statute 
of  Quid  Emptores,  passed  in  the  reign  of  Edward  I.,  it  has 
not  been  lawful  to  create  a  tenure  of  an  estate  in  fee  simple  ; 
so  that  every  lordship  or  seigniory  of  an  estate  in  fee  simple 
bears  date  at  least  as  far  back  as  that  reign ;  to  this  rule  the 
few  seigniories  which  may  haye  been  subsequently  created 
by  the  king's  tenants  in  capite  form  the  only  exception. 

A  small  occasional  quit  rent  with  its  accompanying  relief 
— suit  of  the  Court  Baron,  if  any  such  exists — an  oath  of 
fealty  never  exacted — and  a  right  of  escheat  seldom  accru- 
ing— are  now,  it  appears,  therefore,  the  ordinary  incidents 
of  modern  socage  tenure.  There  are,  however,  a  few 
varieties  in  this  tenure  which  are  worth  mentioning.  They 
arise  in  respect  either  of  the  terms  on  which  the  lands 
holden  were  originally  granted,  or  the  places  where  they 
are  situate.  As  to  the  former  case  lands  may  still  be  holden 
by  grand  or  petit  serjeanty ;  for  while  by  the  Act  of  Charles 
II.  grand  serjeanty  was,  with  the  other  military  tenures, 
turned  into  socage  and  deprived  of  its  burdensome  incidents, 
its  honorary  services  were  expressly  retained.  And  petit 
serjeanty,  being  but  socage  in  effect,  was  not  abolished  by 
the  statute. 


CHAPTER  IV. 

COPYHOLD  TENURE. 

BRACTON,  36.  Further  a  man  may  grant  a  tenement 
which  he  himself  held  by  military  service  to  be  held  in  vil- 
lenage  by  villein  customs  and  services,  provided  that  they 
are  fixed  and  defined. 

ID.,  208.  Further  there  is  a  species  of  tenement  called  a 
villein  tenement :  and  the  tenure  of  villein  tenements  is 
sometimes  pure  villenage,  sometimes  privileged  villenage. 
Pure  villenage  is  where  land  is  held  on  such  terms  that  the 
tenant  in  villenage,  whether  he  be  free  or  a  serf,  shall  do  for 
his  villein  tenement  whatever  be  commanded  him,  and  has  no 
right  to  know  at  night  what  he  will  have  to  do  on  the  mor- 
row ;  and  he  shall  always  be  bound  to  uncertain  services. 
Further  he  is  liable  to  be  taxed  at  the  will  of  the  lord  to  any 
extent.  Further  he  is  bound  to  pay  a  fine  for  the  privilege 
of  giving  his  daughter  in  marriage,  and  thus  he  will  always 
be  bound  without  defined  limits,  provided  that,  if  he  be  a  free 
man,  he  performs  these  duties  as  an  incident  of  his  tenure, 
not  of  personal  status ;  and  he  will  not  by  right  be  bound  to 
pay  the  fine  on  marriage  of  a  daughter,  for  this  is  appro- 
priate to  the  personal  status  of  a  villein,  not  of  a  free  man. 
But  if  he  be  a  villein,  he  is  bound  to  do  all  things,  however 
undefined,  both  as  an  incident  of  his  holding  as  a  villein 
and  of  his  personal  status,  nor  can  a  free  man,  if  he  hold 
in  this  way,  retain  the  villein  tenement  against  the  will  of 
the  lord,  nor  can  he  himself  be  compelled  to  retain  it  unless 
he  desires  to  do  so.  There  is  also  a  holding  in  villenage 
not  of  such  a  pure  type,  whether  the  grant  be  to  a  free  man 
or  to  a  villein,  by  means  of  a  covenant  to  be  held  for  fixed 
services  and  customs  named  and  expressed  in  the  deed, 


122   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

although  the  services  and  customs  are  of  villein  nature. 
And  if  a  free  man  or  a  villein  who  has  received  his  freedom, 
or  who  has  been  conveyed  to  another  person,  is  ejected  from 
such  a  holding,  they  cannot  recover  the  land  as  a  free  tene- 
ment because  it  is  a  villein  tenement,  and  the  assize  would 
not  lie.  The  assize  may,  however,  be  converted  into  a  jury  to 
inquire  concerning  the  covenant,  because  of  the  intent  and 
assent  of  the  transferrer :  for  if  the  complainants  in  such  a 
case  recover  the  villein  tenement,  there  will  not  on  this  ac- 
count be  any  wrong  done  to  the  lord  because  of  his  intent 
and  assent,  and  the  law  does  not  come  to  the  aid  of  the 
tenant  contrary  to  the  will  of  the  lord;  since  if  the  lord  is 
able  to  free  the  villein  and  to  grant  him  a  freehold,  much 
rather  can  he  make  a  covenant  with  him,  for  if  the  lord  can 
do  that  which  is  more  important,  all  the  more  can  he  do  that 
which  is  less  important. 

There  is  also  another  kind  of  villein  tenure  which  has 
been  held  of  our  lord  the  king  ever  since  the  Conquest  of 
England.  This  is  called  villein  socage,  and  it  is  a  villein 
tenure,  but  of  a  privileged  kind.  Thus  the  tenants  of  the 
demesne  of  our  lord  the  king  have  this  privilege,  that  they 
cannot  be  removed  from  the  land  as  long  as  they  are  willing 
and  able  to  render  the  services  which  they  owe,  and  villein 
socmen  of  this  kind  are  properly  said  to  be  bound  to  the 
land.  Moreover  they  render  villein  services,  but  the  ser-" 
vices  are  fixed  and  ascertained.  Nor  can  they  be  compelled 
contrary  to  their  desire  to  hold  tenements  of  this  kind,  and 
therefore  they  are  called  free.  Further  they  cannot  make  a 
gift  of  their  tenements,  or  transfer  them  to  others  by  the 
title  of  gift  any  more  than  pure  villeins  can,  and  therefore  if 
the  tenements  have  to  be  transferred,  the  tenant  surrenders 
them  to  the  lord  or  his  bailiff,  and  the  lord  transfers  them 
to  other  persons  to  be  held  in  villenage. 

LIT.,  §  73.  Tenant  by  copy  of  court-roll  is,  as  if  a  man 
be  seised  of  a  manner,  within  which  manner  there  is  a 
custome,  which  hath  beene  used  time  out  of  minde  of  man, 


COPYHOLD    TENURE.  123 

that  certaine  tenants  within  the  same  manner  have  used  to 
have  lands  and  tenements,  to  hold  to  them  and  their  heires 
in  fee  simple,  or  fee  taile,  or  for  terme  of  life,  &c.,  at  the  will 
of  the  lord  according  to  the  custome  of  the  same  manor. 

§  74.  And  such  a  tenant  may  not  alien  his  land  by  deed, 
for  then  the  lord  may  enter  as  into  a  thing  forfeited  unto 
him.  But  if  he  will  alien  his  land  to  another,  it  behoveth 
him  after  the  custome  to  surrender  the  tenements  in  court, 
&c.,  into  the  hands  of  the  lord,  to  the  use  of  him  that  shall 
have  the  estate,  in  this  forme,  or  to  this  effect. 

A.  of  B.  commeth  into  this  court,  and  surrendreth  in  the 
same  court  a  mease,  &c.,  into  the  hands  of  the  lord,  to  the 
use  of  C.  of  D.  and  his  heires,  or  the  heires  issuing  of  his 
body,  or  for  terme  of  life,  &c.  And  upon  that  commeth 
the  aforesaid  C.  of  D.  and  taketh  of  the  lord  in  the  same 
court  the  aforesaid  mease,  &c.  To  have  and  to  hold  to  him 
and  to  his  heires,  or  to  him  and  to  his  heires  issuing  of 
his  body,  or  to  him  for  terme  of  life,  at  the  lord's  will,  after 
the  custome  of  the  manor,  to  do  and  yeeld  therefore  the 
rents,  services  and  customes  thereof  before  due  and  accus- 
tomed, &c.,  and  giveth  the  lord  for  a  fine,  &c.,  and  maketh 
unto  the  lord  his  fealty,  &c. 

§  75.  And  these  tenants  are  called  tenants  by  copie  of 
court  rolle ;  because  they  have  no  other  evidence  concerning 
their  tenements,  but  onely  the  copies  of  court  rolles. 

§  76.  And  such  tenants  shall  neither  implead,  nor  be 
impleaded  for  their  tenements  by  the  king's  writ.  But 
if  they  will  impleade  others  for  their  tenements,  they  shall 
have  a  plaint  entered  in  the  lord's  court  in  this  forme,  or  to 
this  effect :  A.  of  B.  complaines  against  C.  of  D.  of  a  plea 
of  land,  viz.  of  one  messuage,  forty  acres  of  land,  four  acres 
of  meadow,  &c.,  with  the  appurtenances,  and  makes  pro- 
testation to  follow  this  complaint  in  the  nature  of  the  king's 
writ  of  assise  of  mordancester  at  the  common  law,  or  of  an 
assise  of  novel  disseisin,  or  formedon  in  the  discender  at  the 
common  law,  or  in  the  nature  of  any  other  writ,  &c.  Pledges 
to  prosecute  F.  G.,  &c. 


124   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

§  77.  And  although  that  some  such  tenants  have  an 
inheritance  according  to  the  custome  of  the  manor,  yet  they 
have  but  an  estate  but  at  the  will  of  the  lord  according  to 
the  course  of  the  common  law.  For  it  is  said,  that  if  the 
lord  doe  oust  them,  they  have  no  other  remedy  but  to  sue  to 
their  lords  by  petition;  for  if  they  should  have  any  other 
remedy,  they  should  not  be  said  to  be  tenants  at  will  of  the 
lord  according  to  the  custome  of  the  manor.  But  the  lord 
cannot  breake  the  custome  which  is  reasonable  in  these 
cases. 

But  Brian, chief e  justice, said, that  his  opinion  hath  alwaies 
been,  and  ever  shall  be,  that  if  such  tenant  by  custome  pay- 
ing his  services  be  ejected  by  the  lord,  he  shall  have  an  ac- 
tion of  trespass  against  him.  H.  21,  Ed.  4.  And  so  was 
the  opinion  of  Danby,  chiefe  justice,  in  7  Ed.  4.  For  he  saith, 
that  tenant  by  the  custome  is  as  well  inheritour  to  have  his 
land  according  to  the  custome,  as  he  which  hath  a  freehold 
at  the  common  law. 

DIGBY,  HIST.  REAL  PROP.,  Ch.  V.  §  6.  Copyhold  Tenure. 
— It  has  been  already  seen  that,  at  the  time  of  Domesday, 
besides  the  liberi  homines  there  was  commonly  a  large  class 
of  persons  of  an  inferior  status,  residing  within  the  limits  of 
the  manor  and  bound  as  a  general  rule  to  render  services 
upon  the  domain  lands  of  the  lord.  .The  various  names 
which  prevailed  at  the  time  of  Domesday  and  earlier  cease 
to  be  recognized,  and  we  hear  only  of  villani,  villeins.  [These 
were  either  villeins  regardant — that  is,  atached  to  the  land, 
in  which  case  the  right  to  the  services  of  the  villein  passed 
with  every  alienation  of  the  land ;  or  villeins  in  gross,  at- 
tached to  the  person  of  the  lord,  the  right  to  their  services 
being  saleable  by  deed.  It  is  with  the  former  class  that  the 
history  of  the  law  of  land  is  mainly  concerned.] 

When  a  villein  was  attached  to  a  particular  manor,  it  fol- 
lowed as  a  matter  of  course  that  he  had  a  permanent  habita- 
tion, and  the  means  of  supporting  himself  and  his  family  by 
the  occupation  of  a  plot  of  ground.  This  must  have  been  the 


COPYHOLD    TENURE.  125 

practice  long  before  the  Conquest,  and  was  continued  when 
the  customary  law  of  land  was  modified  by  the  changes 
wrought  by  the  Norman  rule.  When  the  judicial  institu- 
tions of  the  country  took  the  form  in  which  they  appear  in 
the  reign  of  Henry  II.,  there  was  no  forum  in  which  the 
villein  could  assert  his  right  to  his  land,  at  all  events  as 
against  the  lord.  The  courts  baron  of  the  manors  were  only 
for  the  freeholders  of  the  manor,  and  the  Curia  Regis  was  in 
one  point  of  view  but  the  supreme  court  baron  of  the  nation, 
and  only  took  cognizance  of  freehold  rights.  The  villein 
had  no  locus  standi  in  either.  At  the  same  time,  .  .  . 
it  became  the  practice  to  regard  not  so  much  the  status  of  the 
villein,  as  the  nature  of  his  interest  in  land  arising  from  the 
character  of  the  services  rendered  to  the  lord,  and  thus  free- 
men came  to  hold  land  "  in  villenage,"  and  were  little  or  no 
better  off  as  to  legal  rights  than  the  born  villeins.  The  only 
legal  protection,  which  either  the  villein  or  the  freeman 
holding  in  villenage  seems  to  have  had  against  the  lord  in 
Bracton's  time,  was  where  the  lord  entered  into  a  covenant 
with  the  tenant  in  villenage. 

The  lawyers  described  the  position  of  the  tenant  in  villen- 
age by  the  expression  that  he  held  his  land  at  the  will  of 
the  lord.  But,  as  a  matter  of  fact,  the  customs  and  practices 
which  prevailed  in  the  various  manors  tended  to  protect  and 
perpetuate  the  interests  of  this  class  of  tenants.  Custom 
fixed  the  rights  of  the  lord,  the  amount  of  service  to  be 
rendered  to  him,  the  heriots  upon  the  death  of  the  tenant, 
the  fine  on  the  admittance  of  a  new  tenant,  the  mode  of 
succession  and  devolution  of  the  lands  to  the  tenant's  eldest 
or  youngest  son  or  to  all  the  sons  alike,  and  so  forth.  These 
customs,  though  the  institutions  of  the  country  afforded  no 
means  of  enforcing  them  as  against  the  lord  by  judicial 
action,  were  deeply  rooted  in  the  habits  of  the  people,  and 
in  all  probability  the  lord  who  ventured  to  set  them  aside 
and  deprive  the  villein  of  his  customary  rights  must  have 
been  exceptionally  grasping  and  defiant  of  public  opinion. 
Thus  it  is  that  throughout  the  period  extending  from  Brae- 


126   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

ton  to  Edward  IV.  we  hear  this  class  of  tenants  spoken  of  as 
if  they  had  a  recognized  and  legally  protected  interest  in 
lands.  Sir  E.  Coke1  points  out  that  "in  H.  V.  n  they  be 
called  copiholders,  in  14  H.  IV.  34  tenant  per  le  verge,  and 
in  42  E.  III.  25  tenant  per  role  solonque  le  volunt  le  seignior, 
and  in  statute  of  4  E.  I.,  called  Extenta  Manerii,  they  are 
called  custumarii  tenentes." 

It  appears  that  the  tenants  in  villenage  were  present  at 
manorial  courts,  not  on  a  level  with  the  freeholders  or  free 
suitors  to  the  court, — who  were  the  pares  curiae,  the  judges 
of  the  court,  by  whose  equal  voice  all  matters  were  decided, 
— but  in  an  inferior  position.  The  customary  heir  would 
appear  at  the  court  and  humbly  request  admittance  to  the 
land  of  his  deceased  father  on  payment  of  the  customary 
dues  ;  the  tenant  who  had  sold  his  holding  in  villenage  would 
appear  and  surrender  his  land  to  the  lord  or  his  steward, 
and  the  purchaser  would  request  admittance.  These  and 
similar  transactions  are  recorded  on  the  rolls  of  the  court. 
The  rolls  of  the  court  therefore  contain  the  evidence  of  the 
customs  of  the  manor,  the  authorized  copy  of  the  entry  on 
the  rolls  of  the  court  delivered  to  the  tenant  is  his  muniment 
of  title4  and  gives  him  his  name  of  "  copyholder." 

Thus  in  dealing  with  this  class  of  tenants  the  court  baron 
assumed  a  new  form,  which  comes  to  be  distinguished  from 
the  original  court  baron,  and  to  be  called  the  Customary 
Court  Baron  or  Customary  Court.  The  freeholders  are  not, 
generally  speaking,  suitors  at  the  Customary  Court,  except 
perhaps  when  questions  arise  upon  the  customs  of  the  man- 
ors affecting  their  interests.  The  functions  of  the  court  are 
administrative  rather  than  judicial.  The  copyholders  or 
"  homage  "  are  not  pares  curiae.  Their  principal  function  is 
to  make  presentments  upon  matters  concerning  their  inter- 
ests and  the  customs  of  the  manor.  Their  powers  vary  ac- 
cording to  the  customs  of  different  manors.  In  some  there 
is  a  custom  for  the  lord  to  enclose,  or  to  grant  portions  of 
the  waste  to  hold  as  copyhold,  with  the  assent  of  the  homage, 
'Co.  Lit.  58,  a. 


COPYHOLD    TENURE.  I2/ 

which  is  usually  expressed  by  a  sworn  jury  of  copyholders. 
The  lord,  or  more  commonly  the  steward,  presides  over  the 
court;  it  is  his  duty  to  receive  and  record  the  presentments 
of  the  homage. 

Gradually  the  interest  of  the  copyholder  came  to  be  rec- 
ognized by  the  regular  tribunals.  The  great  step  seems  to 
have  been  the  recognition  of  the  right  of  the  tenant  in  villen- 
age  to  maintain  an  action  of  trespass  against  his  lord.  Thus 
incidentally  and  gradually  the  courts  of  common  law  came 
to  recognize  and  enforce  the  customs  which  had  grown  up 
in  different  manors ;  for  example,  the  custom  of  allowing 
the  eldest  son  to  succeed  his  father  in  his  holding,  or  of  ad- 
mitting as  tenant  the  person  to  whom  the  previous  holder 
had  sold  his  rights.  As  the  character  of  the  rights  depended 
upon  the  customs  proved  to  prevail  in  the  different  manors, 
the  rights  of  copyholders  varied  accordingly.  We  find  vari- 
ous customs  as  to  the  rules  of  descent,  duration  of  interest, 
modes  of  alienation,  extent  of  power  of  user  and  otherwise, 
prevailing  in  different  manors,  the  customs  of  each  manor 
constituting  the  law  prevailing  therein.  Except  where 
altered  by  special  custom,  copyholds,  as  to  duration  of  in- 
terest, time  of  enjoyment,  mode  of  descent,  joint  tenancy  and 
tenancy  in  common,  in  general  resemble  freehold  interests. 

Copyhold  tenure  presents  in  the  main  the  same  character- 
istics at  the  present  day.  Land  held  by  copyhold  tenure  is 
always  parcel  of,  and  included  in,  a  manor.  The  lord  of  the 
manor  has  the  freehold,  the  copyholder  holds  "  at  the  will  of 
the  lord  according  to  the  custom  of  the  manor."  The  evi- 
dence of  the  nature  and  extent  of  his  rights  is  to  be  looked 
for,,  primarily,  in  the  court  rolls  of  the  manor:  To  these  ref- 
erence is  made  for  ascertaining  the  various  dues  (fines, 
heriots,  quit  rents,1  and  the  like)  which  the  copyholder  must 
render  to  the  lord.  Here  also  is  found  the  evidence  of  the 
mode  of  descent,  mode  of  alienation,  rights  of  the  surviving 
husband  or  widow  of  the  tenant,  rights  of  the  copyholder  to 

1  "  Quieti  reditus,    because  thereby  the  tenant  goes  quit  and    free    of 
all  other  services."     Blackstone,  ii.  42. 


128   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

common  on  the  wastes  of  the  manor,  and  so  forth.  For 
the  lord  being  the  freeholder,  his  rights  of  ownership  remain 
untouched,  except  so  far  as  they  are  limited  by  the  copy- 
holder's rights  which  have  supervened.  But  inasmuch  as 
the  most  important  of  the  rights  of  ownership,  the  right  of 
exclusion,  is  vested  in  the  copyholder,  a  curious  conflict 
sometimes  arises.  In  some  manors  the  copyholder  may  not 
cut  timber  or  open  mines,  for  these  are  rights  belonging  to 
the  lord ;  but  the  lord  cannot  come  upon  the  land  to  exer- 
cise them. 

The  copyholder  has  the  free  right  of  alienation,  but  the 
mode  of  alienation  preserves  curiously  the  history  of  the 
interest.  The  copyholder  first  surrenders  the  land  to  the 
lord,  and  the  lord  then  admits  (and  may  be  compelled  to 
admit)  the  nominee  of  the  copyholder  upon  payment  of  the 
accustomed  fine,  if  any.  .  .  . 

The  change  in  the  position  of  the  copyholder  is  thus 
summed  up  by  Sir  Edward  Coke  l  :  "  For,  as  I  conjecture,  in 
the  Saxons'  time,  sure  I  am  in  the  Norman's  time,  these 
copyholders  were  so  far  subject  to  the  lord's  will,  that  the 
lords  upon  the  least  occasion  (sometimes  without  any  color 
of  reason,  only  upon  discontentment  and  malice,  sometimes 
again  upon  some  sudden  fantastick  humour,  only  to  make 
evident  to  the  world  the  height  of  their  power  and  author- 
ity), would  expel  out  of  house  and  home  their  poor  copy- 
holders, leaving  them  helpless  and  remediless  by  any  course 
of  law,  and  driving  them  to  sue  by  way  of  petition.  But 
now  copyholders  stand  upon  a  sure  ground;  now  they 
weigh  not  their  lord's  displeasure,  they  shake  not  at  every 
sudden  blast  of  wind,  they  eat,  drink,  and  sleep  securely; 
only  having  a  special  care  pf  the  main  chance,  to  perform 
carefully  what  duties  and  services  soever  their  tenure  doth 
exact,  and  custom  doth  require :  then  let  lord  frown,  the 
copyholder  cares  not,  knowing  himself  safe,  and  not  within 
any  danger.  For  if  the  lord's  anger  grow  to  expulsion,  the 
law  hath  provided  several  weapons  of  remedy;  for  it  is  at 
1  Compleat  Copyholder,  sees.  8,  9. 


COPYHOLD    TENURE.  I2Q 

his  election  either  to  sue  a  subpoena,1  or  an  action  of  trespass 
against  the  lord.  Time  has  dealt  very  favorably  with  copy- 
holders in  divers  respects." 

It  might  have  been  expected  that  so  anomalous  a  class  of 
rights  as  that  which  constitutes  copyhold  tenure  would  be- 
fore the  present  time  have  been  assimilated  to  the  other 
forms  of  property  in  land.  This,  however,  has  not  been 
done.  Copyholds  might  at  any  period  have  been  enfran- 
chised (or  converted  into  freeholds)  by  the  conveyance  of 
the  freehold  by  the  lord  to  the  copyholder,  or  extinguished 
by  surrender  of  the  copyhold  by  the  tenant  to  the  lord.  Vari- 
ous acts  have  in  recent  times  created  facilities  for  this 
process  by  providing  means  for  the  assessment  and  com- 
mutation of  the  lord's  rights  and  otherwise ;  and  at  the  pres- 
ent day  either  lord  or  copyholder  may  compel  enfranchise- 
ment by  taking  the  proper  steps  through  the  action  of  the 
Board  of  Agriculture. 

Where  copyholds  have  not  been  enfranchised  (and  there 
is  still  a  large  though  gradually  decreasing  amount  of  land 
subject  to  copyhold  tenure)  the  rights  are  still  regulated 
entirely  by  custom.  And  inasmuch  as  the  characteristics 
of  this  form  of  property  depend  entirely  upon  custom,  they 
must  have  prevailed  from  a  time  whereof  the  memory  of 
man  runneth  not  to  the  contrary.  In  practice  this  means 
that  the  customary  usages  should  be  shown  to  have  existed 
as  far  back  as  available  evidence  goes,  from  which  the  legal 
inference  arises  that  they  have  existed  from  time  imme- 
morial— that  is,  ever  since  the  first  year  of  Richard  I.2 

J  The  technical  expression  for  proceedings  in  Chancery,  see  page  151, 
Post. 

5  This  date  seems  to  have  become  fixed  as  giving  a  definite  meaning 
to  the  expression  "  time  whereof  the  memory  of  man  runneth  not  to  the 
contrary,"  in  consequence  of  its  having  been  fixed  by  the  Statute  of  West- 
minster I.  (3  Edw.  I.,  c.  39)  as  the  period  of  limitation  in  the  case  of 
a  writ  of  right. 


I3O   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 


///.      Tenure  in  the   United  States. 

i  STORY  CONST.,  §  172.  In  all  the  colonies  the  lands 
within  their  limits  were  by  the  very  terms  of  their  original 
grants  and  charters  to  be  holden  of  the  Crown  in  free  and 
common  socage,  and  not  in  capite,  or  by  knight's  service. 
They  were  all  holden  either  as  of  the  manor  of  East  Green- 
wich in  Kent,  or  of  the  manor  of  Hampton  Court  in  Middle- 
sex, or  of  the  castle  of  Windsor  in  Berkshire.  All  the  slav- 
ish and  military  part  of  the  ancient  feudal  tenures  was  thus 
effectually  prevented  from  taking  root  in  the  American  soil ; 
and  the  colonists  escaped  from  the  oppressive  burdens 
which  for  a  long  time  affected  the  parent  country,  and  were 
not  abolished  until  after  the  restoration  of  Charles  the 
Second.  Our  tenures  thus  acquired  a  universal  simplicity ; 
and  it  is  believed  that  none  but  freehold  tenures  in  socage 
ever  were  in  use  among  us.  No  traces  are  to  be  found  of 
copyhold  or  gavel-kind  or  burgage  tenures.  In  short,  for 
most  purposes,  our  lands  may  be  deemed  to  be  perfectly 
allodial,  or  held  of  no  superior  at  all,  though  many  of  the 
distinctions  of  the  feudal  law  have  necessarily  insinuated 
themselves  into  the  modes  of  acquiring,  transferring  and 
transmitting  real  estates.  One  of  the  most  remarkable  cir- 
cumstances in  our  colonial  history  is  the  almost  total  ab- 
sence of  leasehold  estates.  The  erection  of  manors,  with  all 
their  attendant  privileges,  was,  indeed,  provided  for  in  sev- 
eral of  the  charters.  But  it  was  so  little  congenial  with  the 
feelings,  the  wants,  or  the  interests  of  the  people,  that  after 
their  erection  they  gradually  fell  into  desuetude;  and  the 
few  remaining  in  our  day  are  but  shadows  of  the  past,  the 
relics  of  faded  grandeur  in  the  last  steps  of  decay,  enjoying 
no  privileges,  and  conferring  no  power. 


TENURE    IN    THE    UNITED    STATES.  131 

3  KENT  COM.,  509-514.  Most  of  the  feudal  incidents  and 
consequences  of  socage  tenure  were  expressly  abolished  in 
New  York,  by  the  act  of  1787;  and  they  were  wholly  and 
entirely  annihilated  by  the  New  York  Revised  Statutes,  as 
has  been  already  mentioned.  They  were  also  abolished  by 
statute  in  Connecticut  in  1793;  and  they  have  never  ex- 
isted, or  they  have  ceased  to  exist,  in  all  essential  respects, 
in  every  other  State.  The  only  feudal  fictions  and  services 
which  can  be  presumed  to  be  retained  in  any  part  of  the 
United  States  consist  of  the  feudal  principle,  that  the  lands 
are  held  of  some  superior  or  lord,  to  whom  the  obligation  of 
fealty,  and  to  pay  a  determinate  rent,  are  due.  The  act  of 
New  York,  in  1787,  provided  that  the  socage  lands  were  not 
to  be  deemed  discharged  of  "  any  rents  certain,  or  other 
services  incident,  or  belonging  to  tenure  in  common  socage, 
due  to  the  people  of  this  State,  or  any  mean  lord,  or  other 
person,  or  the  fealty  or  distresses  incident  thereunto."  The 
Revised  Statutes  also  provide,  that  "  the  abolition  of  tenures 
shall  not  take  away  or  discharge  any  rents  or  services  cer- 
tain, which  at  any  time  heretofore  have  been,  or  hereafter 
may  be,  created  or  reserved."  The  lord  paramount  of  all 
socage  land  was  none  other  than  the  people  of  the  State,  and 
to  them,  and  them  only,  the  duty  of  fealty  was  to  be  ren- 
dered ;  and  the  quit-rents  which  were  due  to  the  king  on  all 
colonial  grants,  and  to  which  the  people  succeeded  at  the 
Revolution,  have  been  gradually  diminished  by  commuta- 
tion, under  various  acts  of  the  legislature,  and  are  now 
nearly,  if  not  entirely  extinguished. 

In  our  endeavors  to  discover  the  marks  or  incidents  which 
with  us  discriminated  socage  tenure  from  allodial  property, 
we  are  confined  to  the  doctrine  of  'fealty,  and  of  holding  of  a 
superior  lord.  Fealty  was  regarded  by  the  ancient  law  as 
the  very  essence  and  foundation  of  the  feudal  association. 
It  could  not  on  any  account  be  dispensed  with,  remitted,  or 
discharged,  because  it  was  the  vinculum  commune,  the  bond 
or  cement  of  the  whole  feudal  policy.  Fealty  was  the  same 
as  fidelitas.  It  was  an  oath  of  fidelity  to  the  lord,  and  to 


132   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

use  the  words  of  Littleton,  when  a  freeholder  doth  fealty  to 
his  lord,  he  shall  lay  his  right  hand  upon  a  book,  and  shall 
say,  "  Know  ye  this,  my  lord,  that  I  shall  be  faithful  and 
true  unto  you,  and  faith  to  you  shall  bear,  for  the  lands 
which  I  claim  to  hold  of  you,  and  that  I  shall  lawfully  do  to 
you  the  customs  and  services  which  I  ought  to  do  at  the 
terms  assigned ;  so  help  me  God  and  his  saints."  This  oath 
of  fealty  everywhere  followed  the  progress  of  the  feudal 
system,  and  created  all  those  interesting  ties  and  obligations 
between  the  lord  and  his  vassal,  which,  in  the  simplicity  of 
the  feudal  ages,  they  considered  to  be  their  truest  interest 
and  greatest  glory.  It  was  also  the  parent  of  the  oath  of 
allegiance,  which  is  exacted  by  sovereigns  in  modern  times. 
The  continental  jurist  frequently  considered  homage  and 
fealty  as  synonymous ;  but  this  was  not  so  in  the  English 
law,  and  the  incident  of  homage  was  expressly  abolished  in 
New  York  by  the  act  of  1787,  while  the  incident  of  fealty 
was  expressly  retained.  Homage,  according  to  Littleton, 
was  the  most  honorable  and  the  most  humble  service  of 
reverence  that  a  frank-tenant  could  make  to  his  lord ;  but  it 
is  quite  too  abject  and  servile  a  ceremony  of  submission,  al- 
legiance and  reverence,  to  be  admissible  at  this  day.  .  .  . 

The  New  York  Statute  of  1787  saved  the  services  in- 
cident to  tenure  in  common  socage,  and  which  it  presumed 
might  be  due  not  only  to  the  people  of  the  State,  but  to  any 
mean  lord,  or  other  private  person,  and  it  saved  the  fealty 
and  distresses  incident  thereunto.  But  this  doctrine  of  the 
feudal  fealty  was  never  practically  applied,  nor  assumed  to 
apply  to  any  other  superior  than  the  chief  lord  of  the  fee,  or 
in  other  words,  the  people  of  the  State,  and  then  it  resolved 
itself  into  the  oath  of  allegiance  which  every  citizen,  on  a 
proper  occasion,  may  be  required  to  take.  .  .  . 

Under  the  New  York  Statute,  1787,  fealty,  in  the  tech- 
nical sense  of  the  feudal  law,  was  a  dormant  and  exploded 
incident  of  feudal  tenure ;  and  by  the  Revised  Statutes,  even 
the  fiction  has  become  annihilated,  unless  it  may  be  sup- 
posed to  be  lurking  in  the  general  declaration,  that  "  the 


TENURE    IN    THE    UNITED    STATES.  133 

people  of  this  Stale,  in  their  right  of  sovereignty,  are  deemed 
to  possess  the  original  and  ultimate  property  in  and  to  all 
lands  within  the  jurisdiction  of  the  State." 

Thus,  by  one  of  those  singular  revolutions  incident  to 
human  affairs,  allodial  estates,  once  universal  m  Europe, 
and  then  almost  universally  exchanged  for  feudal  tenures, 
have  now,  after  the  lapse  of  many  centuries,  regained  their 
primitive  estimation  in  the  minds  of  freemen.  Though  the 
doctrine  of  a  feudal  tenure  by  free  and  common  socage  may 
be  applicable  to  the  real  property  in  this  country,  chartered 
and  possessed  before  our  Revolution,  and  though  every  pro- 
prietor should  be  considered  as  holding  an  estate  in  fee- 
simple,  none  of  the  inconveniences  of  tenure  are  felt  or 
known.  We  have  very  generally  abolished  the  right  of 
primogeniture,  and  preference  of  males,  in  the  title  by  de- 
scent, as  well  as  the  feudal  services,  and  the  practice  of  sub- 
infeudation,  and  all  restraints  on  alienation.  Socage  tenures 
do  not  exist  any  longer  in  some  of  the  United  States,  while 
they  still  exist,  in  theory  at  least,  in  others ;  but  where  they 
do  exist  they  partake  of  the  essential  qualities  of  allodial 
estates.  An  estate  in  fee-simple  means  an  estate  of  in- 
heritance, and  nothing  more,  and  in  common  acceptation  it 
has  lost  entirely  its  original  meaning  as  a  beneficiary  or  usu- 
fructuary estate,  in  contradistinction  to  that  which  is  allodial. 
It  was  used  even  by  Littleton  and  Coke,  to  denote  simply  an 
inheritance ;  and  they  are  followed  by  Sir  Martin  Wright 
and  Sir  William  Blackstone.  Whether  a  person  holds  his, 
land  in  pure  allodium,  or  has  an  absolute  estate  of  inheri- 
tance in  fee-simple,  is  perfectly  immaterial,  for  his  title  is  the- 
same  to  every  essential  purpose. 

4  ID.,  3.  It  was  undoubtedly  proper  that  the  tenure  of 
lands  should  be  uniform,  and  that  estates  should  not  in  one 
part  of  the  country  be  of  the  denomination  of  socage  tenures, 
and  in  another  part  allodial ;  but  it  may  be  doubted,  whether 
there  was  any  wisdom  or  expediency  in  the  original  statute 
provision,  declaring  lands  in  New  York  to  be  allodial,  and 
abolishing  the  tenure  of  free  and  common  socage,  since 


134   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

nothing  is  gained  in  effect,  and  nothing  is  gained  even  in 
legal  language,  by  the  alteration.  The  people  of  the  State, 
in  their  right  of  sovereignty,  are  still  declared  to  possess  the 
original  and  ultimate  property  in  and  to  all  lands;  and  the 
right  of  escheat,  and  the  rents  and  services  already  in  use, 
though  incident  to  the  tenure  of  free  and  common  socage, 
are  reserved. 

2  BL.  COM.,  78.  In  those  States  in  which,  by  express 
legislative  enactment,  lands  have  not  been  declared  allodial, 
while  tenure  exists,  it  is  only  in  theory.  All  lands  are  sup- 
posed to  be  held  mediately  or  immediately  of  the  State, 
which  has  succeeded  by  the  Revolution  to  the  feudal  posi- 
tion of  paramount  lord  before  that  period  occupied  by  the 
Crown.  Escheat  in  most  of  the  States  is  regulated  by  stat- 
ute. In  Cornell  v.  Lamb,  2  Cowen,  652,  it  was  declared 
by  Woodworth,  J.,  that  fealty  was  not  in  fact  due  on  any 
tenure,  in  the  State  of  New  York,  and  had  become  altogether 
fictitious.  In  Pennsylvania,  it  has  been  decided  that  the 
statute  of  Quia  emptores  was  never  in  force,  and  subinfeuda- 
tion  was  always  lawful ;  and  though  there  are  some  opinions 
that  tenures  fell  with  the  Revolution,  yet  all  agree  that  they 
existed  before,  and  the  better  opinion  appears  to  be  that  they 
still  exist.  The  principles  of  the  feudal  system,  in  truth, 
underlie  all  the  doctrines  of  the  common  law  in  regard  to 
real  estate,  and  wherever  that  law  is  recognized  recourse 
must  be  had  to  feudal  principles  to  understand  and  carry  out 
the  common  law.  The  necessity  of  words  of  limitation  in 
•deeds — the  distinction  between  words  of  limitation  and 
words  of  purchase — the  principle  that  the  freehold  shall 
never  be  in  abeyance,  that  a  remainder  must  vest  during  the 
continuance  of  a  particular  estate  or  eo  instant i  that  it  de- 
termines, that  the  heir  cannot  take  as  a  purchaser  an  estate 
the  freehold  of  which  by  the  same  deed  is  vested  in  the  an- 
cestor— and  many  more  rules  and  principles  of  very  great 
practical  importance,  and  meeting  us  at  every  turn  in  the 
American  as  well  as  the  English  law  of  real  estate — are  all 


TENURE    IN    THE    UNITED    STATES.  135 

referrible  to  a  feudal  origin.  "  The  principles  of  the  feudal 
system,"  said  Chief  Justice  Tilghman,  "  are  so  interwoven 
with  our  jurisprudence  that  there  is  no  removing  them  with- 
out destroying  the  whole  texture."  Lyle  v.  Richards,  9  S. 
&  R->  333-  "  Though  our  property  is  allodial,"  said  Chief 
Justice  Gibson,  "  yet  feudal  tenures  may  be  said  to  exist 
among  us  in  their  consequences  and  the  qualities  which  they 
originally  imparted  to  estates ;  as,  for  instance,  in  precluding 
every  limitation  founded  on  an  abeyance  of  the  fee."  Mc- 
Call  v.  Neely,  3  Watts,  71. — Sharswood's  note. 

i  GRAY,  CAS.  PROP., 407,  note.  Tenure  in  the  United  States. 
— Land  in  the  colony  of  Virginia  was  holden  of  the  king  as 
of  the  "  manor  of  East  Greenwich,  in  the  county  of  Kent,  in 
free  and  common  socage  only,  and  not  in  capite."  Lucas, 
Chart.  8,  12,  22;  so  in  Massachusetts,  id.  36,  75;  so  in  Con- 
necticut, id.  54;  so  in  Rhode  Island,  id.  65.  Land  in  Mary- 
land was  holden  of  the  king  as  of  the  castle  of  Windsor,  in 
the  county  of  Berks,  "  in  free  and  common  socage,  by  fealty 
only,  for  all  services,  and  not  in  capite,  or  by  knight's  ser- 
vice " ;  yielding  annually  "  two  Indian  arrows  of  those 
parts."  Id.  90.  And  the  proprietary  could  grant  land  to  be 
held  of  himself,  the  statute  of  Quia  emptores  notwithstand- 
ing. Id.  95.  So  in  Pennsylvania,  yielding  "  two  beaver 
skins."  Id.  101,  106.  Land  in  Georgia  was  to*be  held  of 
the  king  as  of  the  manor  of  Hampton  Court,  in  the  county 
of  Middlesex,  in  free  and  common  socage,  and  not  in  cap- 
ite, at  a  money  rent.  Id.  117. 

NEW  YORK  CONST.,  1894,  Art.  I.,  §  10.  The  people  of 
this  State,  in  their  right  of  sovereignty,  are  deemed  to  pos- 
sess the  original  and  ultimate  property  in  and  to  all  lands 
within  the  jurisdiction  of  the  State;  and  all  lands  the  title 
to  which  shall  fail,  from  a  defect  of  heirs,  shall  revert,  or 
escheat  to  the  people. 

§  ii.  All  feudal  tenures  of  every  description,  with  all 
their  incidents,  are  declared  to  be  abolished,  saving,  how- 


136   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

ever,  all  rents  and  services  certain  which  at  any  time  hereto- 
fore have  been  lawfully  created  or  reserved. 

§  12.  All  lands  within  this  State  are  declared  to  be 
allodial,  so  that,  subject  only  to  the  liability  to  escheat,  the 
entire  and  absolute  property  is  vested  in  the  owners,  accord- 
ing to  the  nature  of  their  respective  estates. 

§  13.  No  lease  or  grant  of  agricultural  land,  for  a  longer 
period  than  twelve  years,  hereafter  made,  in  which  shall  be 
reserved  any  rent  or  service  of  any  kind,  shall  be  valid. 

§  14.  All  fines,  quarter-sales  or  other  like  restraints  upon 
alienation,  reserved  in  any  grant  of  land  hereafter  to  be 
made,  shall  be  void. 

19  N.  Y.  REP.,  73.  Our  ancestors  in  emigrating  to  this 
country,  brought  with  them  such  parts  of  the  common  law 
and  such  of  the  English  statutes  as  were  of  a  general 
nature  and  applicable  to  their  situation  (i  Kent,  473,  and 
cases  cited  in  note  a  to  the  5th  ed. ;  Bogardus  v.  Trinity 
Church,  4  Paige,  178)  ;  and  when  the  first  constitution  of 
this  State  came  to  be  framed,  all  such  parts  of  the  common 
law  of  England  and  of  Great  Britain  and  of  the  acts  of  the 
Colonial  Legislature  as  together  formed  the  law  of  the  Col- 
ony at  the  breaking  out 'of  the  Revolution,  were  declared  to 
be  the  law  of  this  State,  subject,  of  course,  to  alteration  by 
the  legislature.  (Art.  35.)  The  law  as  to  holding  lands  and 
of  transmitting  the  title  thereto  from  one  subject  to  another 
must  have  been  a  matter  of  the  first  importance  in  our 
colonial  state ;  and  there  can  be  no  doubt  but  that  the  great 
body  of  the  English  law  upon  that  subject,  so  far  as  it  re- 
garded the  transactions  of  private  individuals,  immediately 
became  the  law  of  the  colony,  subject  to  such  changes  as 
were  introduced  by  colonial  legislation.  The  lands  were 
holden  under  grants  from  the  Crown,  and  as  the  king  was 
not  within  the  statute  Quia  emptores  a  certain  tenure,  which 
after  the  act  of  12  Charles  II.,  ch.  24,  abolishing  military 
tenures,  must  have  been  that  of  free  and  common  socage, 
was  created  as  between  the  king  and  his  grantee.  I  have 


TENURE    IN    THE    UNITED    STATES.  137 

elsewhere  expressed  the  opinion  that  the  king  might,  not- 
withstanding the  statute  against  subinfeudation,  grant  to 
his  immediate  tenant  the  right  to  alien  his  land  to  be  holden 
of  himself,  and  thus  create  a  manor,  where  the  land  was  not 
in  tenure  prior  to  the  i8th  Edward  I.  (The  People  v.  Van 
Rensselaer,  5  Seld.  334.)  But  with  the  exception  of  the  ten- 
ure arising  upon  royal  grants,  and  such  as  might  be  created 
by  the  king's  immediate  grantees  under  express  license  from 
the  Crown,  I  am  of  opinion  that  the  law  forbidding  the  creat- 
ing of  new  tenants  by  means  of  subinfeudation  was  always 
the  law  of  the  Colony,  and  that  it  was  the  law  of  this  State, 
as  well  before  as  after  the  passage  of  our  act  concerning 
tenures,  in  1787.  A  contrary  theory  would  lead  to  the  most 
absurd  conclusions.  We  should  have  to  hold  that  the  feudal 
system,  during  the  whole  colonial  period  and  for  the  first  ten 
years  of  the  State  government,  existed  here  in  a  condition 
of  vigor  which  had  been  unknown  in  England  for  more  than 
three  centuries  before  the  first  settlement  of  this  country. 
We  should  be  obliged  to  resolve  questions  arising  upon  early 
conveyances,  under  which  many  titles  are  still  held,  by  the 
law  which  prevailed  in  England  during  the  first  two  cen- 
turies after  the  Conquest,  before  the  commencement  of  the 
Year  Books,  and  long  before  Littleton  wrote  his  Treatise 
upon  Tenures. — Per  Denio,  J.,  in  Van  Rensselaer  v.  Hays 
(1859)- 

GRAY,  PERPETUITIES,  §  24.  In  those  States  where  tenure 
no  longer  obtains,  there  can  be  no  question  whether  the 
statute  Quia  emptores  is  in  force;  its  subject-matter  has 
ceased  to  exist.  In  this  condition  are  at  least  Connecticut, 
New  York,  Maryland,  Virginia,  Ohio,  Wisconsin,  West 
Virginia,  Kentucky  (?),  Minnesota,  California. 

§  25.  In  the  States  where  there  is  no  reason  to  question 
the  'existence  of  tenure,  there  seems  as  little  reason  to 
question  the  existence  of  the  statute  Quia  emptores.  There  is 
no  cause  why  this  statute  should  not  have  prevailed  as  gener- 
ally as  the  statute  De  Donis.  Denio,  J.,  in  Van  Rensselaer  v. 


138   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

Hays,  points  out  the  absurdity  of  supposing  that  subinfeuda- 
tion  existed  in  the  Colonies  generally.  In  New  Jersey  the 
statute  was  in  force,  and  has  been  expressly  re-enacted ; 
Mr.  Dane  says  that  the  statute  of  Quia  emptores  was  "  never 
adopted  here"  (qit.  in  Massachusetts).  But  no  authority  is 
cited  for  the  proposition.  The  alleged  non-existence  of  the 
statute  in  North  Carolina,  Tennessee,  Georgia,  Alabama, 
and  Mississippi  rests  upon  the  same  ground  as  the  alleged 
non-existence  in  those  States  of  the  statute  De  Donis,  which, 
as  we  have  seen,  wholly  fails.  In  Indiana,  Illinois,  and 
Michigan  either  there  is  no  tenure,  or  if  tenure  exists,  the 
statute  Quia  emptores  exists  also.  There  would  seem  to  be, 
of  the  States  in  which  tenure  exists  at  the  present  day,  but 
two  in  which  the  statute  Quia  emptores  is  not  in  force — 
Pennsylvania  and  South  Carolina. 

§  26.  Pennsylvania. — By  the  charter  of  1681  the  Crown 
granted  to  William  Penn  the  power  to  grant  land  to  be  held 
of  himself,  his  heirs  and  assigns,  and  not  immediately  of 
the  Crown,  the  statute  Quia  emptores  notwithstanding. 
And  in  Ingersoll  v.  Sergeant  (1836),  a  very  elaborately 
argued  and  carefully  considered  case,  it  was  held  that  the 
statute  Quia  emptores  was  not  in  force,  and  that  therefore 
rent  reserved  on  a  conveyance  in  fee-simple  was  rent  ser- 
vice and  could  be  apportioned.  This  decision  has  always 
been  deemed  a  landmark  in  the  law  of  Pennsylvania;  but 
in  Wallace  v.  Harmstad  (1863)  the  court  ruled  that  there 
was  no  tenure  in  the  State.  This  ruling  was  unnecessary  to 
the  decision  of  the  case,  and  has  been  far  from  meeting  with 
universal  acceptance.  It  has  been  severely  criticised  by 
Chief  Justice  Sharswood  in  his  Law  Lectures,  and  by  Mr. 
Cadwalader  in  his  treatise  on  Ground  Rents.  These  criti- 
cisms seem  just.  If  Wallace  v.  Harmstad  had  professed  to 
overrule  Ingersoll  v.  Sergeant,  the  ruling,  whether  right  or 
wrong,  would  be  plain  enough.  But  on  the  contrary  it  is 
said :  "  That  ground  rent  is  a  rent  service  was  fundamental 
in  Ingersoll  v.  Sergeant,  a  case  which  has  been  so  often  rec- 
ognized and  followed  as  to  have  become  a  rule  of  property." 


TENURE    IN    THE    UNITED    STATES.  139 

In  fact,  Wallace  v.  Harmstad  is  unintelligible.  To  speak  of 
rent  service,  or  of  the  statute  Quia  emp tores,  in  a  State 
where  tenure  is  non-existent,  is  an  absurdity ;  rent  service 
and  the  statute  Quia  emptores  necessarily  imply  tenure. 
They  are  meaningless  terms  without  it.  Considering  the 
high  authority  which  has  always  attached  to  Ingersoll  v. 
Sergeant,  there  may  be  reason,  in  spite  of  Wallace  v.  Harm- 
stad, to  believe  that  tenure  still  exists  in  Pennsylvania,  and 
that  the  statute  Quia  emptores  does  not.  ' 

§  27.  South  Carolina. — On  December  12,  1712,  was 
passed  an  act  to  put  in  force  in  the  province  the  English 
statutes  therein  particularly  mentioned,  the  tenth  section  of 
which  declared  that  all  the  English  statutes  not  enumerated 
and  made  of  force  in  the  province  by  the  act  were  impracti- 
cable in  the  province.  The  statute  Quia  emptores  is  not 
mentioned  in  this  act,  and  is  therefore  not  law  in  South 
Carolina. 

§  28.  The  important  result  of  this  inquiry,  for  our  pres- 
ent purposes,  is  that  in  all  of  the  United  States,  with  the 
exception  of  South  Carolina  and  perhaps  Pennsylvania,  land, 
if  held  at  all,  can  be  held  of  none  but  the  State  ;  for  in  all  the 
States,  with  the  two  exceptions,  either  there  is  no  tenure,  or, 
if  there  is  tenure,  the  statute  Quia  emptores  is  in  force. 


B.  EQUITABLE  OWNERSHIP. 

CHAPTER  I. 

USES, 
(a)  Before  the  Statute. 

i  Co.  REP.,  121.  An  use  is  a  trust  or  confidence  which  is 
not  issuing  out  of  land,  but  as  a  thing  collateral  annexed  in 
privity  to  the  estate,  and  to  the  person,  touching  the  land, 
scil.  that  cestui  que  use  shall  take  the  profits,  and  that  the 
tertenant  shall  make  estates  according  to  his  direction.  So 
that  he  who  hath  an  use  hath  not  jus  neque  in  re,  neque  ad 
rem,  but  only  a  confidence  and  trust,  for  which  he  hath  no 
remedy  by  the  common  law,  but  his  remedy  was  only  by 
subpoena  in  Chancery.  If  the  feoffees  would  not  perform 
the  order  of  the  Chancery,  then  their  persons  for  the  breach 
of  the  confidence  were  to  be  imprisoned  till  they  did  per- 
form it;  and  therefore  the  case  of  an  use  is  not  like  unto 
commons,  rents,  conditions,  etc.,  which  are  hereditaments 
in  judgment  of  law,  and  which  cannot  be  taken  away  or  dis- 
continued by  the  alienation  of  the  tertenant,  or  by  disseisins, 
or  by  escheats,  etc.,  as  uses  may,  as  shall  after  be  said.  There 
were  two  inventors  of  uses,  fear  and  fraud ;  fear  in  times  of 
troubles  and  civil  wars  to  save  their  inheritances  from  being 
forfeited;  and  fraud  to  defeat  due  debts,  lawful  actions, 
wards,  escheats,  mortmains,  etc. — Chudleigh's  Case. 

Co.  LIT.,  271,  b.  Note,  uses  are  raised  either  by  trans- 
mutation of  the  estate,  as  by  fine,  feoffment,  common  recov- 
erie,  &c.,  or  out  of  the  state  of  the  owner  of  the  land,  by 
bargaine  and  sale  by  deed  indented  and  inrolled,  or  by  cov- 
enant upon  lawfull  consideration,  whereof  you  may  read 
plentifully  in  my  Reports. 


USES.  141 

272,  a.  The  greater  part  of  the  lands  in  England  in  those 
troublesome  and  dangerous  times  (when  that  unhappie  con- 
troversie  betweene  the  houses  of  York  and  Lancaster  was 
begun)  were  in  use. 

BACON,  USES,  TRACTS,  303.  First,  use  is  no  right,  title, 
or  interest  in  law,  and  therefore  master  attorney  who  read 
upon  this  statute  said  well,  that  there  are  but  two  rights — 
Juf  in  re,  Jus  ad  rem.  The  one  is  an  estate,  which  is  Jus  in 
re,  the  other  a  demand,  which  is  Jus  ad  rem,  but  a  use  is 
neither.  .  .  .  The  books  go  farther  and  say  that  a  use 
is  nothing,  as  in  2  H.  VII.  .  .  .  But  these  books  are  not 
to  be  taken  generally  or  grossly,  for  we  see  in  the  same 
books,  when  an  use  is  specially  alleged,  the  law  taketh 
knowledge  of  it ;  but  the  sense  of  it  is,  that  use  is  nothing 
for  which  remedy  is  given  by  the  course  of  the  common  law, 
so  as  the  law  knoweth  it,  but  protects  it  not ;  and  therefore 
when  the  question  cometh  whether  it  hath  any  being  in 
nature  and  conscience  the  law  accepteth  of  it ;  and  therefore 
Littleton's  case  is  good  'law,  that  he  which  hath  but  forty 
shillings  freehold  in  use,  shall  be  sworn  in  an  inquest,  for 
it  is  ruled  secundum  dominium  naturale  and  not  secundum 
do  minium  legitimurn,  nam  natura  dominus  est,  quia  fructum 
ex  re  percipit. 

ID.,  314.  For  the  inception  and  progression  of  uses,  I 
have  for  a  precedent  in  them  searched  other  laws,  because 
states  and  commonwealths  have  common  accidents ;  and  I 
find  in  the  civil  law,  that  that  which  cometh  nearest  in  name 
to  the  use,  is  nothing  like  in  matter,  which  is  usus  fructus; 
for  usus  fructus  and  dominium  is  with  them,  as  with  their 
particular  tenancy  and  inheritance.  But  that  which  resem- 
bleth  the  use  most  is  fidei  commissio,  and  therefore  you 
shall  find  in  Justinian,  lib.  2,  that  they  had  a  form  in  testa- 
ments, to  give  inheritance  to  one  to  the  use  of  another, 
Haeredem  constituo  Caium,  rogo  autem  te,  Caie,  ut  haered- 
itatem  restituas  Seio;  and  the  text  of  the  civilians  saith, 
that  for  a  great  time  if  the  heir  did  not,  as  he  was  required, 


142   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

cesty  que  use  had  no  remedy  at  all,  until  about  the  time  of 
Augustus  Caesar  there  grew  in  custom  a  flattering  form  of 
trust,  for  they  penned  it  thus :  Rogo  te  per  sahitem  Augus- 
ti,  or  per  fortunam  Augusti,  &c.  Whereupon  Augustus  took 
the  breach  of  trust  to  sound  in  derogation  of  himself,  and 
made  a  rescript  to  the  praetor  to  give  remedy  in  such  cases ; 
whereupon  within  the  space  of  a  hundred  years,  these  trusts 
did  spring  and  speed  so  fast,  as  they  were  forced  to  have 
a  particular  chancellor  only  for  uses,  who  was  called  praetor 
fidei  coininissariiis;  and  not  long  after  the  inconvenience  of 
them  being  found,  they  resorted  unto  a  remedy  much  like 
unto  this  statute ;  for  by  two  decrees  of  senate,  called  scna- 
tus  consult um  Trebellianum  and  Pegasianum,  they  made 
cesty  que  use  to  be  heir  in  substance.  I  have  sought  like- 
wise, whether  there  be  anything  which  maketh  with  them 
in  our  law,  and  I  find  that  Periam,  chief  baron,  in  the  argu- 
ment of  Chudley's  case,  compareth  them  to  copyholders,  and 
aptly  for  many  respects.  ... 

Now,  for  the  cases  whereupon  uses  were  put  in  practice, 
Coke  in  his  reading  doth  say  well,  that  they  were  produced 
sometimes  for  fear,  and  many  times  for  fraud.  But  I  hold 
that  neither  of  these  cases  were  so  much  the  reasons  of  uses, 
as  another  reason  in  the  beginning,  which  was,  that  lands 
by  the  common  law  of  England  were  not  testamentary,  or 
devisable ;  and  of  late  years  since  the  statute,  the  case  of  the 
conveyance  for  sparing  of  purchases,  and  execution  of 
estates ;  and  now  last  of  all  an  excess  of  evil  in  men's  minds, 
affecting  to  have  the  assurance  of  their  estate,  and  posses- 
sion to  be  revocable  in  their  own  times,  and  irrevocable  after 
their  own  times.  .  .  . 

I  cannot  find  in  any  evidence  before  King  R.  II.  his  time, 
the  clause  ad  opus  and  usum,  and  the  very  Latin  of  it  sa- 
voureth  of  that  time ;  for  in  ancient  time,  about  Edw.  I.  his 
time,  and  before,  when  lawyers  were  part  civilians,  the  Latin 
phrase  was  much  purer,  as  you  may  see  by  Bracton's  writ- 
ing, and  by  ancient  patents  and  deeds,  and  chiefly  by  the 
register  of  writs,  which  is  good  Latin ;  wherein  this  phrase 


USES.  143 

(ad  opus  and  usum)  and  the  words  (ad  opus)  is  a  barbarous 
phrase,  and  like  enough  to  be  the  penning  of  some  chaplain 
that  was  not  much  past  his  grammar,  where  he  had  found 
opus  and  usus  coupled  together,  and  that  they  did  govern 
an  ablative  case ;  as  they  do  indeed  since  this  statute,  for  they 
take  away  land  and  put  them  into  a  conveyance. 

2  POLL.  &  MAIT.,  HIST.  ENG.  LAW,  226.  The  germ  of 
agency  is  hardly  to  be  distinguished  from  the  germ  of  an- 
other institution  which  in  our  English  law  has  an  eventful 
future  before  it,  the  "  use,  trust,  or  confidence."  In  tracing 
its  embryonic  history  we  must  first  notice  the  now  estab- 
lished truth  that  the  English  word  use  when  it  is  employed 
with  a  technical  meaning  in  legal  documents  is  derived  not 
from  the  Latin  word  usus,  but  from  the  Latin  word  opus, 
which  in  old  French  becomes  os  or  oes.  True  that  the  two 
words  are  in  course  of  time  confused,  so  that  if  by  a  Latin 
document  land  is  to  be  conveyed  to  the  use  of  John,  the 
scribe  of  the  charter  will  write  ad  opus  Johannis  or  ad  usum 
Johannis  indifferently,  or  will  perhaps  adopt  the  fuller  for- 
mula ad  opus  et  ad  usum;  nevertheless  the  earliest  history  of 
"  the  use  "  is  the  early  history  of  the  phrase  ad  opus. 

ID.,  229.  Now  in  few,  if  any,  of  these  cases  can  the  ad 
opus  be  regarded  as  expressing  the  relation  which  we  con- 
ceive to  exist  between  a  principal  and  an  agent.  It  is  in- 
tended that  the  "  feoffee  to  uses  "  (we  can  employ  no  other 
term  to  describe  him)  shall  be  the  owner  or  legal  tenant  of 
the  land,  that  he  shall  be  seised,  that  he  shall  bear  the  bur- 
dens incumbent  on  owners  or  tenants,  but  he  is  to  hold  his 
rights  for  the  benefit  of  another.  Such  transactions  seem  to 
have  been  too  uncommon  to  generate  any  definite  legal  the- 
ory. Some  of  them  may  have  been  enforced  by  the  ecclesi- 
astical courts.  Assuredly  the  citizens  of  London  would 
have  known  what  an  interdict  meant,  had  they  misappropri- 
ated the  lands  conveyed  to  them  for  the  use  of  the  friars, 
those  darlings  of  popes  and  kings.  Again,  in  some  cases  the 
feoffment  might  perhaps  be  regarded  as  a  "  gift  upon  con- 


144   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

dition,"  and  in  others  a  written  agreement  about  the  occu- 
pation of  the  land  might  be  enforced  as  a  covenant.  But 
at  the  time  when  the  system  of  original  writs  was  taking  its 
final  form  "  the  use  "  had  not  become  common  enough  to 
find  a  comfortable  niche  in  the  fabric.  And  so  for  a  while 
it  lives  a  precarious  life  until  it  obtains  protection  in  the 
"  equitable  "  jurisdiction  of  the  chancellors.  If  in  the  thir- 
teenth century  our  courts  of  common  law  had  already 
come  to  a  comprehensive  doctrine  of  contract,  if  they  had 
been  ready  to  draw  an  exact  line  of  demarcation  between 
"  real "  and  "  personal  "  rights,  they  might  have  reduced 
"  the  use  "  to  submission  and  assigned  to  it  a  place  in  their 
scheme  of  actions :  in  particular,  they  might  have  given  the 
feoffor  a  personal,  a  contractual,  action  against  the  feoffee. 
But  this  was  not  quite  what  was  wanted  by  those  who  took 
part  in  these  transactions ;  it  was  not  the  feoffor,  it  was  the 
person  whom  he  desired  to  benefit  (the  cestui  que  use  of 
later  days)  who  required  a  remedy,  and  moreover  a  remedy 
that  would  secure  him  not  money  compensation,,  but  enjoy- 
ment of  the  land.  "  The  use  "  seems  to  be  accomplishing 
its  manifest  destiny  when  at  length,  after  many  adventures, 
it  appears  as  "  equitable  ownership." 

DIGBY,  HIST.  REAL  PROP.,  Ch.  VI.  It  is  not  easy  to  dis- 
cover at  what  time  the  practice  first  arose  of  attaching  to  the 
alienation  of  land  a  trust  or  confidence  that  the  alienee  should 
hold  the  lands  to  the  use  of  the  donor,  or  of  some  third  per- 
son named  by  him.  When  "  uses  "  are  first  noticed  in  the 
records  of  our  law  they  appear  as  the  result  of  established 
and  well-known  practice.  Yet  it  was  long  before  the  obliga- 
tion of  a  "  use,  trust,  or  confidence  "  was  recognized  by  any 
tribunal.  It  is  true  that  the  ecclesiastical  courts  at  one  time 
enforced  conscientious  obligations,  entertaining  suits  de 
fidei  laesione,  but  this  jurisdiction  is  said  to  have  been  taken 
away  from  them  in  cases  arising  between  laymen  as  to  civil 
matters  in  the  reign  of  Henry  III.  If,  therefore,  a  feoff- 
ment  was  made  to  A.  to  the  use  of  B.,  or,  in  other  words,  in 


USES.  145 

trust  and  confidence  that  A.  would  permit  B.  to  enter  and 
occupy,  or  receive  the  fruits  and  profits  of  the  lands,  there 
were  no  legal  means  of  compelling  A.  to  carry  out  this  trust. 
It  was  simply  a  conscientious  obligation.  No  doubt  such 
obligations  were  enforced  by  the  authority  of  the  confessor, 
and  regarded  with  special  favor  by  the  church.  There  seems 
no  reason  to  question  the  commonplace  of  the  text-books, 
that  the  practice  of  giving  lands  by  way  of  use  or  trust  was 
largely  resorted  to  in  order  to  enable  ecclesiastical  corpora- 
tions to  evade  the  Statutes  of  Mortmain. 

Various  conjectures  have  been  made  as  to  the  origin  of 
the  recognition  of  the  binding  character  of  a  trust,  confi- 
dence, or  use  thus  created.  The  clergy  from  early  times 
recognized  breach  of  faith  as  a  matter  of  which  the  ecclesi- 
astical courts  would  take  cognizance.  It  is  probable  that 
some  of  the  doctrines  of  Roman  law  greatly  aided  toward 
the  establishment  of  the  system  of  uses  of  land  as  a  definite 
interest  distinct  from  the  legal  estate.  A  strong  analogy  in 
some  points  to  the  system  of  uses  is  presented  by  the  Roman 
distinction  between  legal  and  beneficial  ownership.  It  was 
possible  under  the  Roman  system,  before  the  changes  intro- 
duced by  Justinian,  for  a  thing  to  have  two  owners.  There 
was  the  legal  owner,  the  dominus  ex  jure  civili,  or  ex  jure 
Quiritium,  who  was  the  complete  owner  in  the  view  of  the 
older  law — who  alone  could  dispose  of  or  claim  the  thing  by 
the  processes  recognized  by  the  older  law.  He  might,  how- 
ever, in  certain  cases  pass  to  another  the  beneficial  owner- 
ship without  affecting  his  own  legal  rights  in  the  view  of 
the  older  law.  If,  for  instance,  the  owner  of  a  res  mancipi — 
for  example,  a  slave — sold  the  slave  to  another,  and  to  the 
completion  of  the  transaction  there  was  alone  wanting  the 
appropriate  ceremony  of  mancipatio — delivery  accompanied 
by  certain  forms — the  legal  title  remained  unaffected,  what 
passed  to  the  purchaser  was  simply  the  beneficial,  or,  as  it 
was  barbarously  called  by  the  commentators,  bonitarian 
ownership ;  in  virtue  of  which  the  purchaser  could  in  effect, 
by  calling  in  aid  the  later  Praetorian  jurisdiction,  assert  and 


146   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

exercise  practically  all  the  rights  of  the  real  owner,  only  he 
could  not  employ  the  older  and  more  cumbrous  procedure 
of  the  jus  civile. 

This  analogy,  however,  does  not  carry  us  further  than 
the  separation  of  the  idea  of  legal  ownership,  or  ownership 
at  the  common  law,  from  beneficial  ownership,  that  is, 
ownership  unrecognized  by  the  older  law,  but  the  advan- 
tages of  which  can  practically  be  asserted  by  calling  in  aid 
another  power  distinct  from  that  of  the  magistrate  enforc- 
ing the  older  law.  The  distinction  between  the  two  kinds  of 
ownership  was  abolished  by  Justinian. 

Another  analogy  was  found  in  the  Roman  idea  of  usus- 
fructus,  or  the  right  to  the  temporary  enjoyment  of  a  thing, 
as  distinct  from  the  ownership  of,  or  absolute  property  in  it. 
This  analogy,  however,  fails  at  several  points.  There  is  no 
binding  relation  between  the  owner  and  the  usufructuary, 
by  which  the  former  is  compelled  to  hold  to  the  use  of  the 
latter.  The  relation  between  the  two  rather  resembles  that 
of  a  tenant  for  life,  or  other  limited  owner,  and  the  rever- 
sionei  in  fee. 

Another  analogy  is  found  in  the  doctrines  relating  to 
fidei-commissa.  The  legal  restrictions  on  successions  and 
legacies  led  in  the  later  period  of  the  Republic  to  the  practice 
of  a  testator  instituting  an  heir,  and  at  the  same  time  re- 
questing him  to  dispose  of  the  whole  or  a  portion  of  the 
property  in  a  particular  way,  for  example,  to  hand  over  the 
inheritance  or  a  legacy  to  a  person  who  was  not  a  Roman 
citizen,  and  therefore  by  the  strict  rule  of  the  jus  civile  in- 
capable of  taking  it  directly.  Till  the  time  of  Augustus  there 
appears  to  have  been  no  legal  obligation  on  the  person  to 
whom  this  trust  was  committed.  Justinian  says  of  these 
fidei-commissa,  as  they  were  called,  "  Nullo  vinculo  juris, 
sed  tantum  pudore  eorum  qui  rogabantur,  continebantur." 
Afterwards  the  obligation  came  to  be  recognized  as  one 
capable  of  being  enforced  in  the  proper  court,  and  a  Praetor 
fidei-commissarius  was  appointed  to  administer  this  branch 
of  jurisdiction.  At  Rome  "  trusts  "  could  only  be  created 


USES.  147 

by  will,  and  under  the  later  law  the  distinction  for  all  prac- 
tical purposes  between  fidei-commissa  and  legacies  disap- 
peared. 

Whatever  may  be  the  true  account  of  the  origin  of  the 
recognition  of  uses,  it  appears  that  the  practice  of  conveying 
lands  to  uses  prevailed  to  a  great  extent  as  early  as  the  reign 
of  Edward  III.  It  seems  to  have  been  not  unusual  for  lay 
persons  to  make  fraudulent  feoffments  of  their  lands  to- 
evade  their  creditors.  The  result  was  that  the  creditor  could 
not  have  execution  for  his  debt,  the  land  being  in  the  hands, 
not  of  the  debtor,  but  of  his  feoffee.  The  transaction  being  a 
collusive  one,  the  debtor  would  receive  from  his  feoffee  the 
profits  of  the  lands  without  the  burdens  attaching  to  legal 
ownership.  This  was  restrained  by  the  statute,  50  Edward 
III.,  c.  6.  In  the  reign  of  Richard  II.  a  similar  practice 
seems  to  have  been  adopted  in  order  to  protect  disseisors  and 
other  wrongdoers  from  the  claims  of  the  rightful  owners  of 
the  land.  In  the  same  reign  the  practice  of  evading  the 
Statutes  of  Mortmain  by  giving  lands  to  a  feoffee  to  hold  to 
the  use  of  a  religious  corporation  was  effectually  restrained 
by  15  Richard  II.,  c.  5.  .  .  .  If,  therefore,  the  prac- 
tice of  conveying  lands  to  uses  originated -in  the  desire  of 
the  clergy  to  evade  the  Statutes  of  Mortmain,  the  device  re- 
ceived a  final  check  by  this  enactment.  It  seems,  however, 
that  the  advantages  of  being  the  beneficial  instead  of  the 
legal  owner  of  lands  were  appreciated  to  such  a  degree  that 
the  practice,  although  it  ceased  to  fulfil  its  original  purpose, 
became  more  and  more  widely  spread. 

The  use  of  lands  came  to  be  regarded  as  an  interest  wholly 
distinct  from  the  legal  estate,  and  free  from  all  the  burdens 
which  attached  to  the  tenancy  at  common  law.  If  a  person 
who  had  only  the  use  of  lands  (the  legal  title  being  vested  in 
another  person  who  was  seised  to  his  use),  committed  trea- 
son or  felony,  the  lands  were  not  subject  to  escheat  or  for- 
feiture ;  he  who  had  the  use  owed  no  dues  or  service  to  the 
lord ;  his  creditor  could  not  take  the  lands  in  execution  for 
debt ;  nor  could  a  rival  claimant  bring  an  action  against  hinr 


148   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

without  the  risk  of  the  legal  owner  intervening  and  setting 
up  his  own  legal  title.  On  the  other  hand,  he  who  had  the 
use  would  have  the  full  enjoyment  of  the  lands,  the  feoffee 
to  the  use  would  allow  him  to  be  in  possession  and  to  reap 
the  profits,  and  he  could  dispose  of  and  sell  his  interest  with- 
out the  necessity  of  the  cumbrous  ceremony  of  livery  of 
seisin,  or  of  any  formal  conveyance.  Further,  he  could  cre- 
ate interests  wholly  unknown  to  the  common  law,  and  could 
even  direct  the  devolution  of  the  interest  by  his  will.  It  is 
true  that  neither  the  interest  of  cestui  que  use,  as  the  bene- 
ficiary was  called,  nor  that  of  his  alienee  was  protected  or 
recognized  by  law ;  but  in  this  case,  as  so  often  in  the  history 
of  our  law,  usage  laid  the  foundation  of  what  afterward  be- 
came legal  rights,  and  use's  of  land  protected  only  by  the 
obligations  of  conscience  and  good  faith,  of  which  the  clergy 
were  the  guardians,  were,  it  is  said,  by  the  time  of  Henry  V. 
the  rule  rather  than  the  exception  throughout  the  country. 

Thus  a  new  species  of  interest  in  lands  grew  up  differing 
wholly  from  any  right  recognized  by  the  common  law. 
What  then  was  the  foundation  of  the  right  of  a  person  hav- 
ing a  use,  or,  in  other  words,  what  was  the  nature  of  the  ob- 
ligation incumbent  upon  the  person  holding  to  the  use  ? 
.  At  first,  so  far  as  is  known,  it  appears  to  have  rested  sim- 
ply on  moral  or  religious  obligation.  There  was  no  court  or 
public  functionary  of  any  kind  whereby  the  use  would  be 
i  protected.  The  only  external  authority  by  which  the  duty 
I  was  enforced  was  that  of  the  confessor.  The  common  law 
courts  knew  nothing  of  cestui  que  use,  and  the  ecclesiastical 
courts  were  powerless  to  help  him.  It  so  happened  that,  at 
the  very  time  at  which  the  practice  of  conveying  land  to  uses 
was  becoming  prevalent,  a  new  jurisdiction  was  rising  into 
importance,  administering  justice  outside  the  pale  of  the 
common  law.  This  was  the  jurisdiction  of  the  Chancellor. 

The  ordinary  functions  of  the  Chancellor  were  of  a  very 
ancient  date.  As  the  keeper  of  the  Great  Seal  all  grants  and 
letters  patent  passed  under  his  supervision.  All  original 
writs,  by  which  actions  at  law  were  commenced,  were  issued 


USES,  1 49 

out  of  Chancery  and  sealed  with  the  royal  seal.  But  in  issu- 
ing these  writs  the  functions  of  the  Chancellor  were  simply 
ministerial.  He  had  no  judicial  authority.  He  could  frame 
no  new  writ  to  meet  a  new  state  of  circumstances.  He  was 
a  prominent  member  of  the  Council,  though  subordinate  to 
the  great  Justiciar  so  long  as  that  office  existed.  As  time 
went  on  the  position  of  the  Chancellor  increased  in  im- 
portance. His  close  relations  with  the  King  armed  him  with 
a  large  measure  of  the  royal  power.  His  position  as  a  great 
ecclesiastic  made  him  solicitous  for  the  interests  of  the 
Church,  and  familiar  with  the  canon  and  civil  law. 

In  early  times,  when  the  various  functions  of  the  differ- 
ent departments  of  state  were  ill-defined,  it  was  the  common 
practice  for  persons  aggrieved,  especially  when  for  any 
reason  they  could  not  avail  themselves  of  the  ordinary  proc- 
ess of  law,  to  present  petitions  to  the  Council  or  to  the  King 
for  redress.  If  a  poor  man  was  oppressed  by  one  who,  as 
of  ten  happened,  was  powerful  enough  to  set  the  ordinary  proc- 
ess of  law  at  defiance,  the  remedy  was  to  be  sought  from 
the  King  or  the  Council,  who  alone  were  strong  enough  to 
do  right.  Or,  again,  if  a  case  arose  in  which  no  writ  lay, 
and  consequently  in  which  there  was  no  remedy  to  be  had  at 
common  law,  recourse  could  be  had  to  the  King  or  Council 
as  the  supreme  depositaries  of  power.  It  appears  that  in  the 
reign  of  Edward  I.  it  became  usual  for  the  King  to  refer 
such  of  these  petitions  as  were  addressed  directly  to  him  to 
the  Chancellor.  In  the  twenty-second  year  of  Edward  III. 
a  writ  or  ordinance  was  issued  directing  that  for  the  future 
all  such  matters  as  were  of  grace  should  be  referred  to  the 
Chancellor  or  to  the  Keeper  of  the  Privy  Seal.  Hence  the 
practice  arose  of  presenting  petitions  directly  to  the  Chan- 
cellor, upon  which  the  Chancellor  made  decrees,  giving  or 
withholding  redress  according  to  principles  which  were  cer- 
tainly not  always  those  of  the  common  law. 

This  practice,  which  dates  from  the  end  of  the  reign  of 
Edward  III.,  or  the  beginning  of  that  of  Richard  II.,  may 
be  taken  to  be  the  cause  of  the  rise  of  the  judicial  functions 


I5O   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

of  the  Chancellor.  Upon  petitions  thus  presented  the  Chan- 
cellor would,  if  he  thought  fit,  issue  a  writ,  called  a  writ  of 
-subpoena,  in  the  name  of  the  King,  commanding  the  person 
complained  of  to  appear  and  answer  the  matter  alleged 
against  him  and  abide  by  the  order  of  the  court.  This  was 
called  the  writ  of  subpoena  from  the  usual  addition  of  the 
words  sub  poena  centum  librarum.  This  penalty,  however, 
was  not  commonly  exacted,  but  from  the  earliest  times  it 
.seems  to  have  been  the  practice  to  enforce  the  decrees  of  the 
Chancellor  by  attachment,  that  is,  by  arrest  and  imprison- 
ment for  contempt  of  court.  Thus  the  Chancellor,  unlike 
the  courts  of  common  law,  had  power  to  order  things  to  be 
done,  to  decree  that  a  contract  should  be  performed,  that 
property  should  b?  given  up,  that  a  thing  creating  a  nui- 
sance should  be  removed.  From  the  writ  above  mentioned 
the  common  expression  in  the  older  law  books  for  a  proceed- 
ing in  Chancery  is  a  "  writ  of  subpoena." 

******* 

It  is  necessary  at  this  stage  to  keep  clearly  in  view  the 
two  opposing  but  related  interests — that  of  feoffee  to  uses, 
or,  to  use  a  more  modern  expression,  trustee,  and  that  of 
cestui  que  use,  or  the  person  beneficially  interested. 

The  feoffee  to  uses  is  alone  recognized  by  the  common  law 
as  entitled  to  the  land.  It  is  from  him  that  every  alienee 
who  is  to  take  a  legal  interest  must  receive  his  title ;  he,  and 
he  only,  is  recognized  as  the  tenant  to  the  lord;  his  treason 
alone  is  the  cause  of  forfeiture;  for  his  debts  alone  can  the 
land  be  taken  in  execution.  The  law  knows  nothing  of  any 
third  person  who  is  free  from  the  burdens  while  he  reaps  the 
profits  of  the  tenancy. 

Supposing  however  that  the  feoffee  attempts  to  exercise 
his  legal  right  by  alienating  or  charging  the  lands,  he  would, 
at  the  time  we  are  now  speaking  of,  be  restrained  from  doing 
so,  by  the  extra-legal,  or,  if  the  expression  may  be  allowed, 
supra-legal  power  of  the  Chancellor, — a  power,  as  has  been 
seen,  stronger  than  the  law.  Further,  the  Chancellor  having 
power  not  only  to  restrain  wrong-doing,  but  to  command  the 


USES.  151 

performance  of  acts,  would  order  the  feoffee  to  do  any  law- 
ful acts  of  disposition  which  ccstui  que  use  may  require  of 
him.  He  would  be  constrained  to  convey  his  legal  interest 
to  ccstui  que  use  or  his  heir,  or  to  a  purchaser  from  him ; 
to  convey  to  the  person  named  in  ccstui  que  use's  will ;  to 
make  the  provision  required  by  him  for  his  family ;  to  make 
a  portion  for  his  wife,  or  for  payment  of  his  debts ;  and 
to  prosecute  all  actions  necessary  for  the  protection  of  cestui 
que  use's  interest. 

The  earliest  conception  of  a  use  was,  as  has  been  seen, 
a  trust  binding  on  the  conscience  of  the  feoffee,  a  personal 
obligation  upon  him.  It  followed  that  on  the  death  of  the 
feoffee  the  heir  who  succeeded  him  was  discharged  of  the 
trust,  no  conscientious  obligation  affecting  him  ever  having 
been  created.  But  in  the  reign  of  Edward  IV.,  if  not  earlier, 
the  heir  of  the  feoffee  was  held  to  take  the  lands  subject  to 
the  same  trusts  as  his  ancestor  held  them.  The  same  rule 
was  extended  to  the  case  of  a  person  taking  by  alienation 
fof  valuable  consideration  from  the  feoffee,  and  having 
notice  of  the  use.  A  purchaser  for  valuable  consideration 
without  notice  held  the  lands  free  from  the  obligation,  and 
in  that  case  the  only  remedy  of  cestui  que  use  would  be 
against  the  feoffee  personally.  In  like  manner  the  lord  who 
came  into  possession  on  an  escheat,  the  creditor  upon  an 
elegit,  or  the  husband  or  wife  by  virtue  of  curtesy  or  dower, 
held  the  land  free  and  discharged  from  the  use. 

In  tracing  the  history  of  the  law  of  uses  it  is  necessary 
shortly  to  enumerate  the  chief  characteristics  of  uses  before 
the  legislation  to  be  noticed  in  the  next  chapter.  It  follows, 
from  what  has  been  said  as  to  the  origin  of  uses,  that  the 
feoffee  to  uses  must  be  an  individual  capable  of  the  con- 
scientious obligation.  Hence  a  body  corporate  is  incapable 
of  holding  to  the  use  of  any  one.  Nor  were  aliens,  or  per- 
sons attainted,  or  the  king,  capable  of  holding  to  a  use. 

The  Court  of  Chancery  in  establishing  rules  regulating 
the  interest  of  cestui  que  use  in  some  respects  followed  the 
rules  of  law,  in  others  departed  from  them.  "Equity  follows 


152   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

the  law"  in  respect  of  uses,  principally  in  holding  these  in- 
terests to  be  subject  to  the  same  rules  as  to  the  duration  and 
devolution  of  the  estate  as  in  the  case  of  the  legal  interest. 
For  instance,  if  a  feoff ment  be  made  to  B.  and  his  heirs  to 
the  use  of  C.  and  his  heirs,  or  to  the  use  of  C.  and  the  heirs 
of  his  body,  or  to  the  use  of  C.  for  life,  or  to  the  use  of  C. 
for  ten  years,  C.  would  have  an  equitable  estate  in  fee  which 
would  descend  to  his  eldest  son,  or  to  all  his  sons  in  gavel- 
kind  lands,  or  to  his  youngest  in  borough  English ;  or  an 
estate  tail,  which  might  be  further  limited  so  as  to  be  an 
estate  in  tail  special  or  general,  male  or  female ;  or  an  estate 
for  life ;  or  an  estate  for  years,  which  upon  C.'s  dying  within 
the  term  would  devolve  upon  his  executors. 

On  the  other  hand,  the  wife  or  husband  of  cestui  que  use 
was  not  entitled  to  dower  or  curtesy,  nor  was  the  lord  en- 
titled to  escheat  on  failure  of  heirs,  nor,  except  so  far  as 
certain  changes  were  introduced  by  legislation,  was  the  king 
entitled  to  forfeiture,  or  the  creditor  to  take  the  lands  in 
execution. 

But  the  widest  difference  between  the  rules  of  common 
law  and  those  which  prevailed  in  the  Court  of  Chancery  is 
to  be  found  in  the  manner  in  which  uses  of  lands  could  be 
created  or  transferred.  The  simplest  and  most  ordinary  way 
of  creating  a  use  has  already  been  referred  to.  For  example, 
A.,  tenant  in  fee  simple,  makes  a  feoffment  to  B.  and  his 
heirs,  to  the  use  of  C.  and  his  heirs.  Uses  might  also  be 
created  by  a  fine  or  recovery  levied  or  suffered  to  an  ex- 
pressed use.  In  these  cases  uses  are  said  to  be  created  by 
a  conveyance  operating  by  way  of  transmutation  of  posses- 
sion; that  is,  they  accompany  one  of  the  recognized  modes 
of  conveying  the  seisin  at  common  law — feoffment,  fine,  or 
recovery.  An  expression  of  the  intention  of  the  donor  that 
the  donee  should  hold  the  lands  granted  to  certain  uses  was 
sufficient  to  burden  the  donee  with  the  duty  of  holding  to 
the  use  of  cestui  que  use. 

But  in  some  cases  uses  were  said  to  be  raised  by  implica- 
tion ;  that  is,  though  no  use  was  expressed  in  the  grant,  yet 


USES.  153 

the  circumstances  were  such  that  the  Chancellor  would  de- 
clare that  the  donor  intended  the  donee  to  hold,  not  for  his 
own  benefit,  but  as  donee  to  uses.  This  arose  principally 
in  the  case  where  the  feoffment  or  other  conveyance  was 
made  without  consideration,  that  is,  without  an  adequate 
motive.  In  this  case  the  doctrine  of  the  Court  of  Chancery 
was  that  the  intention  of  the  donor  must  have  been  that  the 
donee  should  hold  not  for  his  own  benefit,  but  for  the  use 
and  benefit  of  the  donor.  The  use  was  said  to  result  or 
come  back  to  the  donor.  Two  kinds  of  consideration  alone 
were  regarded  as  affording  a  sufficient  motive ;  these  were 
blood  or  money.  Blood,  or,  in  other  words,  natural  affection 
felt  towards  a  near  relative,  would  be  sufficient  to  vest  in 
a  son,  brother,  nephew,  or  cousin,  the  beneficial  as  well  as  the 
legal  interest,  if  the  intention  of  the  donor  were  expressed 
in  a  deed.  This  however  commonly  took  the  form  of  a 
covenant  to  stand  seised,  to  be  presently  noticed.  The  other 
consideration  was  money,  and  here,  so  long  as  the  convey- 
ance is  expressed  to  be  made  for  a  money  consideration,  the 
amount  is  immaterial ;  it  is,  at  all  events,  sufficient  evidence 
of  the  intention  of  the  donor  to  part  with  the  beneficial  as 
well  as  the  legal  interest  in  the  lands.  If  no  proper  evidence 
of  either  of  these  motives  existed,  the  beneficial  interest 
resulted  or  came  back  to  the  donor.  It  was  in  fact  only  an 
instance  of  the  practice  which  seems  to  have  become  very 
common  about  the  time  of  the  Wars  of  the  Roses,  so  that 
"the  use  of  the  country  to  deliver  lands  to  be  safely  kept  has 
made  the  mere  delivery  of  possession  no  evidence  of  right 
without  a  valuable  consideration."1  This  however  did  not 
apply  to  the  case  of  a  grant  for  life  or  years. 

Uses  raised  by  a  conveyance  operating  by  transmutation 
of  possession  are  distinguished  from  uses  raised  without 
any  such  transmutation.  Under  certain  circumstances  a  per- 
son, though  he  had  done  nothing  which  would  be  regarded  at 
common  law  as  a  parting  with  his  legal  interest,  was  con- 
strained by  the  Chancellor  to  hold  to  the  use  and  benefit  of 
'Sugd.  Gilb.  Uses,  p.  125. 


154   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

another.  This  arose  principally  in  the  two  cases  of  bargains 
and  sales,  and  of  covenants  to  stand  seised. 

A  bargain  and  sale  was  where  the  legal  owner  entered 
into  an  agreement  with  a  purchaser  for  the  sale  to  him  of 
his  interest,  and  the  purchaser  paid,  or  promised  to  pay,  the 
money  for  the  land.  The  transaction  would  not  be  complete 
at  law  without  a  legal  conveyance ;  but  in  Equity  a  use  was 
"raised"  in  favour  of  the  purchaser,  the  bargainer  was  in  the 
view  of  the  Chancellor  the  bare  legal  owner,  holding  to  the 
use  and  for  the  benefit  of  the  bargainee. 

A  covenant  to  stand  seised  was  where  a  person  by  deed 
agreed  to  stand  seised  to  the  use  of  some  near  relation — 
son,  brother,  nephew,  or  cousin.  In  this  case  the  considera- 
tion of  natural  affection  was  sufficient  to  raise  a  use  in  favour 
of  the  covenantee. 

When  by  any  of  the  above  methods  the  interest  of  cestui 
que  use  had  been  created,  that  interest  might,  without  any 
formality,  by  words  or  acts  evidencing  the  intention,  be 
transferred  by  cestui  que  use  to  any  one  capable  of  taking 
a  use. 

Another  mode  by  which  uses  could  be  raised  or  transferred 
was  by  will.  An  instance  will  be  found  below  of  a  feoffment 
made  on  a  death-bed  to  the  use  of  a  will.  After  the  death  of 
the  feoffor  the  feoffee  would  be  constrained  to  hold  to  the 
uses  declared.  Thus  if  A.  made  a  feoffment  to  B.  and  his 
heirs  to  the  uses  declared  by  his  last  will,  and  declared  a  use 
in  favour  of  C.  and  his  heirs,  the  use  would,  until  A.'s  death, 
result  or  come  back  to  him.  Upon  A.'s  death  C.  could  claim 
by  virtue  of  the  will  to  be  the  equitable  or  beneficial  owner. 
So  a  use  vested  in  cestui  que  use  could  be  devised  by  him. 
For  example,  if  cestui  que  use  devised  that  his  feoffees 
should  alien  the  land  for  payment  of  his  debts,  the  creditors 
might  compel  them  in  the  Court  of  Chancery  to  do  it.  Thus 
by  the  medium  of  uses  the  power  of  disposing  of  interests 
in  lands  by  will  was  for  all  practical  purposes  regained,  and 
was  so  firmly  established  as  to  withstand  the  attempt  made 
in  the  reign  of  Henry  VIII.  to  restrain  it  by  legislation.  It 


USES.  155 

should  be  remembered  that  no  formality,  not  even  writing, 
was  required  to  establish  a  will ;  any  evidence  of  the  expres- 
sion of  the  intention  of  a  testator  would  be  sufficient  to  raise 
a  use  by  which  the  next  legal  owner  would  be  bound. 

Various  consequences  as  to  the  capacity  of  dealing  with 
the  beneficial  interest  in  lands  followed  upon  the  introduction 
of  uses  besides  those  above  pointed  out.  Of  these  the  most 
important  were — ( i )  that  a  man  might  convey  the  beneficial 
interest  in  lands  to  himself.  This  practice,  as  has  been 
before  observed,  was  largely  resorted  to  in  troublous  times 
when  a  freehold  tenant  wished  to  retain  the  benefits,  and 
escape  the  burdens,  attaching  to  the  legal  estate  in  lands. 
(2)  A  man  might  convey  a  beneficial  interest  to  his  wife. 
The  Chancellor  did  not  consider  himself  bound  by  the  strin- 
gent doctrine  of  the  common  law  that  a  married  woman  was 
incapable  of  holding  separate  property.  A  use  declared  in 
favour  of  a  woman  would  be  enforced  whether  the  woman 
was  married  at  the  time  or  married  afterwards.  Thus  it 
became  a  common  practice  for  a  man  upon  his  marriage  to 
convey  lands  to  feoffees  to  the  joint  use  of  himself  and  his 
wife  for  life  or  in  tail,  by  which  means  a  provision  for  the 
remainder  of  her  life  was  secured  to  the  wife.  This  was 
called  a  jointure.  Before  the  Statute  of  Uses  the  wife  might 
have  claimed  dower  in  addition  to  this  provision ;  by  that 
Statute,  however,  when  provision  was  made  for  the  wife 
by  jointure,  she  was  put  to  her  election  whether  she  would 
claim  dower  or  jointure,  but  was  not  allowed  to  claim  both. 
Thus  were  laid  the  foundations  of  one  of  the  principal  classes 
of  rights  created  by  the  Court  of  Chancery,  the  Equitable 
Estate  of  Married  Women. 

ID.,  Ch.  VII.,  §  i.  Before  the  passing  of  the  Statute  of 
Uses  in  the  twenty-seventh  year  of  Henry  VIII.,  attempts 
had  been  made  to  protect  by  legislation  the  interests  of  cred- 
itors, of  the  king,  and  of  the  lords,  which  were  affected  in- 
juriously by  feoffments  to  uses.  It  has  already  been  seen 
that  the  legislature  at  a  very  early  date  interfered  in  the 
interest  of  creditors  to  render  uses  liable  to  be  taken  in  ex- 


156   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

ecution  for  debt.  By  Richard  III.,  c.  I,  the  conveyances  of 
cestui  que  use  were  made  good  without  assent  of  the  fe- 
offees; and  by  4  Henry  VII.,  c.  17,  the  lord  was  given  the 
wardship  of  the  heir.  The  tendency  of  these  and  similar  en- 
actments was  to  assimilate  in  some  particulars  the  position 
of  cestui  que  use  to  that  of  legal  owner,  to  throw  upon  him 
some  at  all  events  of  the  burdens  and  liabilities  attaching 
to  the  legal  ownership.  What  imperfect  success  attended 
these  attempts  appears  from  the  preamble  of  the  Statute  of 
Uses. 

(&)   The  Statute  of  Uses.  f 

STAT.  USES  (27  HEN.  VIII.,  c.  10,  1527).  Where  by  the 
common  laws  of  this  realm,  lands,  tenements  and  heredita- 
ments  be  not  devisable  by  testament,  nor  ought  to  be  trans- 
ferred from  one  to  another\jDutby  solemn  livery  and  seisin, 
matter  of  record,  writing  sufficient  made  bona  fide,  without 
covin  or  'fraud  j  yet  neyetheless  divers  and  sundry  imagina- 
tip^s^ubtle_injveirdons,  and  practices  have  been  used,  where- 
by the  hereditaments  of  this  realm  have  been  conveyed  from 
one  to  another  by_Jraudiil£nt^eoffments,  fines,_  recoveries, 
and  other  assurances  craftily  made  to  secret  uses,  intents, 
and  trusts,  and  also  by  wills  and  testaments,  sometimes 
made  by  nude  parolx  and  words,  sometimes  by  signs  and 
tokens,  and  sometimes  by  writing,  and  for  the  most  part 
made  by  such  persons  as  be  visited  with  sickness,  in  their 
extreme  agonies  and  pains,  or  at  such  time  as  they  have  had 
scantly  any  good  memory  or  remembrance ;  at  which  times 
they  being  provoked  by.  greedy LJinjljcoy^tous_persons  lying 
in  wait  about  them,  do  many  times  dispose  indiscreetly  ajjd 
unadvisedly  their  lands  and  inheritances  \by  reason  whereof , 
and~tiy~^ccasi6tr*6f "which  fraudulent  feoffments,  fines,  re- 
coveries, and  other  like  assurances  to  uses,  confidences,  and 
trusts,  divers  andjpany  heirs  have  beenunjjustly  at  sundry 
times  disinherited,  the  lonTs~  have  lost  their^  wards^  mar- 
riages, reliefs,  harriots,  escheats,  aids  pur  fair  fits  chivalicr 


USES.  157 

and  pur  file  marier,  and^cantly_an)!L4)ersQn_can  be  certainly 
assured  of  any  landsjjy  them  purchased,  nor  know  surely 
against  whom  they  shall  use  their  actions  or  execution  for 
their  rights,  titles  and  duties  ;  also  men  married  have  lost 
their  tenancies  by  the  curtesy,  women  their  dowers;  mani- 
fest perjuries  by  trial  of  such  secret  wills  and  uses  have 
been  committed  ;  the  king's  highness  hath  lost  the  profits 
and  advantages  of  the  lands  of  persons  attainted,  and  of  the 
lajids  craftily  put  in  feoffment  to  the  uses  of  aliens  born,  and 
also  the  profits  of  waste  for  a  year  and  a  day  of  lands  of 
felons  attainted,  and  the  lords  their  escheats  thereof;  and 
many  other  inconveniences  have  happened,  and  daily  do  in- 
crease among  the  king's  subjects,  to  their  great  trouble  and 
inquietness,  and  to  the  utter  subversion  of  the  ancient  com- 
mon law  of  this  realm  ;  jojLthe  extirpating  and  extinguish- 
ment of  all  such  jsubtle  practised  feoffments,  fines,  recoveries, 
abuses  and  errors  heretofore^  used  and  accustomed  in  this 
realm,  to  the  subversion  of  the  good  and  ancient  laws  of  the 
same,  and  to  the  intent  thai^EeTcing's  highness  or  any  other 
his  subjects  of  this  feaTrn7iEall  not  in  any  wise  hereafter, 
by  any  means  or  inventions,  b 


by  reason  of  such  trusts,  uses,  or  confidences  :Jlt  may  please 
the  King's  most  royal  Majesty,  that  it  may  be  enacted  by 
his  Highness,  by  the  assent  of  the  Lords  Spiritual  and  Tem- 
poral and  the  Commons,  in  this  present  parliament  as- 
sembled, and  by  the  authority  of  the  same,  in  manner  and 
form  following  :  that  is  to  say,_thaj:  where  any  person  or  per- 
sons_standr  or  be  seised,  jpr  at  any  time  hereafter  shall  hap- 
pen to  be  seised  ofand  in  any  honours,  castles,  manors, 
land^tenenjejits,  rents,  services,  reversions,  remainders,  or 
other  hereditaments,  to^  the  use,  confidence,  or  trust  of_anv 
other  person  or-  persons^_or^of  any  body  politick,  by  reason 
oT~~any  nbargainfsaleV  feoffment,  fine,  recovery,  covenant, 
contract,  agreement,  will,  or  otherwise,  by  any  manner 
means  whatsoever  it  be  ;  that  in  every  such  case,  all_jind 
everysuch_person  and  persons,  and  bodies_golitick._that  have 
or  hereafter  shall  have  any  such  use,  confidence,  or  trust  in 


158  ,RFADINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

fee  sin'ple,  fee  tail,  for  term  of  life,  or  for  years,  or  other- 
wise ;  or  any_use,  confidencej^r^jnisji^^i^remain^ej^i^re- 
verter,  shajl_from_  hence  forth  stand  and  be  seised,  deemed, 
and  adjudged  in  lawful  seisin^estate,  and  possession  of  and 
in  the^same_JiQnours,  castles,  manorsT^ lands,  "tenements, 
rents,  services,  reversions,  remainders,  and  hereditaments, 
with  their  appurtenances,  to  all  intents,  constructions,  and 
purposes  in  the  law,  n-f^nj  jn  «;nrh  like  estates,  as  they  had 
or  shall_hayp  i"  11gp,  trnst,  »r  confidence  of  or  in  the  same : 
an^jLthatJihe  estate,  title,  right,  and  possession  that  was  in 
such  person  or  persons  that  were  or  hereafter  shall  be  seised 
of  any  lands,  tenements,  or  hereditaments,  to  the  use,  con- 
fidence, or  trust  of  any  such  person  or  persons,  or  of  any 
body  politick,  be  from  henceforth  clearlydeemed  and_ad- 
iudged  to  be  in  him  or  thenuLhat  have,  or  hereafter  shall 
have,  such  use,  confidenoyor  trust,  after  such  quality,  man- 
ner, form,  and  condition  as  they  had  before,  in  or  to  the  use, 
confidence,  or  trust  that  was  in  them. 

4.  And  be  it  further  enacted  by  the  authority  aforesaid, 
that  whereas  divers  persons  have  purchased,  or  have  estate 
made  and  conveyed  of  and  in  divers  lands,  tenements,  and 
hereditaments,  unto  them  and  to  their  wives  and  to  the  heirs 
of  the  husband,  or  to  the  husband  and  to  the  wife,  and  to  the 
heirs  of  their  two  bodies  begotten,  or  to  the  heirs  of  one  of 
their  bodies  begotten,  or  to  the  husband  and  to  the  wife,  for 
term  of  their  lives,  or  for  term  of  life  of  the  said  wife,  or 
where  any  such  estate  or  purchase  of  any  lands,  tenements, 
or  hereditaments  hath  been  or  hereafter  shall  be  made  to  any 
husband  and  to  his  wife,  in  manner  and  form  expressed,  or 
to  any  other  person  or  persons,  and  to  their  heirs  and  as- 
signs, to  the  use  and  behoof  of  the  said  husband  and  wife, 
or  to  the  use  of  the  wife,  as  is  before  rehearsed,  for  the 
jointer  of  the  wife,  that  then  in  every  such  case  every  woman 
married  having  such  jointer  made  or  hereafter  to  be  made 
shall  not  claim  nor  have  title  to  have  any  dower  of  the 
residue  of  the  lands,  tenements,  or  hereditaments  that  at  any 
time  were  her  said  husband's,  by  whom  she  hath  any  such 


USES.  159 

jointer,  nor  shall  demand  nor  claim  her  dower  of  and 
against  them  that  have  the  lands  and  inheritances  of  her 
said  husband,  but  if  she  have  no  such  jointer,  then  she  shall 
be  admitted  and  enabled  to  pursue,  have,  and  demand  her 
dower  by  writ  of  dower  after  the  due  course  and  order  of 
the  common  laws  of  this  realm,  this  act  or  any  law  or  pro- 
vision made  to  the  contrary  thereof  notwithstanding. 

9.  And  forasmuch  as  great  ambiguities  and  doubts  may 
arise  of  the  validity  and  invalidity  of  wills  heretofore  made 
of  any  lands,  tenements,  and  hereditaments,  to  the  great 
trouble  of  the  King's  subjects,  the  King's  most  royal  Maj- 
esty, minding  the  tranquillity  and  rest  of  his  loving  sub- 
jects, of  his  most  excellent  and  accustomed  goodness  is 
pleased  and  contented  that  it  be  enacted,  by  the  authority  of 
this  present  parliament,  that  all  manner  true  and  just  wills 
and  testaments  heretofore  made  by  any  person  or  persons 
deceased,  or  that  shall  decease  before  the  first  day  of  May 
that  shall  be  in  the  year  of  our  Lord  God  1536,  of  any  lands, 
tenements,  or  other  hereditaments,  shall  be  taken  and  ac- 
cepted good  and  effectual  in  the  law,  after  such  fashion, 
manner,  and  form  as  they  were  commonly  taken  and  used  at 
any  time  within  forty  years  next  afore  the  making  of  this 
act,  anything  contained  in  this  act,  or  in  the  preamble  there-- 
of,  or  any  opinion  of  the  common  law  to  the  contrary  thereof 
notwithstanding. 

N.  Y.  REAL  PROP.  LAW,  §  70.  Every  estate  which  is 
now  held  as  a  use,  executed  under  any  former  statute  of  the 
State,  is  confirmed  as  a  legal  estate. 

§  72.  Every  person  who,  by  virtue  of  any  grant,  assign- 
ment, or  devise,  is  entitled  both  to  the  actual  possession 
of  real  property,  and  to  the  receipt  of  the  rents  and  profits 
thereof,  in  law  or  equity,  shall  be  deemed  to  have  a  legal 
estate  therein,  of  the  same  quality  and  duration,  and  sub- 
ject to  the  same  conditions,  as  his  beneficial  interest. 

§  73.  Every  disposition  of  real  property,  whether  by 
deed  or  by  devise,  shall  be  made  directly  to  the  person  in 


l6o   READINGS  IN.  THE  LAW  OF  REAL  PROPERTY. 

whom  the  right  to  the  possession  and  profits  is  intended  to  be 
vested,  and  not  to  another  to  the  use  of,  or  in  trust  for,  such 
person ;  and  if  made  to  any  person  to  the  use  of,  or  in  trust 
for  another,  no  estate  or  interest,  legal  or  equitable,  vests 
in  the  trustee.  But  neither  this  section  nor  the  preceding 
sections  of  this  article  shall  extend  to  the  trusts  arising,  or 
resulting  by  implication  of  law,  nor  prevent  or  affect  the 
creation  of  such  express  trusts  as  are  authorized  and  defined 
in  this  chapter. 

(c)  Operation  of  the  Statute. 

i  Co.  REP.,  124.  It  would  be  absurd  to  say  that  the  makers 
of  this  act  intended  to  preserve  uses,  when  they  expressly  say 
that  they  intended  to  extirpate  and  extinguish  uses.  Also 
it  is  absurd  to  think  that  the  makers  of  this  act  intended  to 
preserve,  etc.,  quodam  modo  to  revive  the  ancient  common 
law,  and  yet  intended  to  preserve  or  continue  any  such  abuse 
and  fraud  which  tendeth  to  the  overthrowing  of  the  com- 
mon law.  For  they  have  declared,  that  the  invention  of 
these  uses  was  subtle,  fraudulent,  and  crafty  in  disinherison 
of  heirs,  in  defrauding  of  lords,  of  those  who  had  right  of 
their  lawful  actions,  of  purchasers,  of  tenant  in  dower,  of 
tenant  by  the  curtesy,  causes  of  manifest  perjury  in  defraud- 
ing the  king  and  lords  of  their  escheats,  etc.,  in  subversion 
of  the  ancient  common  laws,  and  the  cause  of  many  other  in- 
conveniences, and  the  occasion  of  great  trouble  and  disturb- 
ance in  the  commonwealth.  I  say,  it  would  be  absurd  to 
think  that  the  makers  of  the  act  intended  not  only  to  con- 
tinue, but  to  increase  and  preserve  such  wickedness,  mis- 
chiefs, and  inconveniencies. — Chudleigh's  Case. 

BACON,  USES,  TRACTS,  324.  This  statute,  as  it  is  the  stat- 
ute which  of  all  others  hath  the  greatest  power  and  opera- 
tion over  the  heritages  of  the  realm,  so  howsoever  it  hath 
been  by  the  humour  of  the  time  perverted  in  exposition,  yet 
in  itself  is  most  perfectly  and  exactly  conceived  and  penned 


USES.  161 

of  Aiiy  law  in  the  book.  'Tis  induced  with  the  most  declaring 
and  persuading  preamble ;  'tis  consisting  and  standing  upon 
the  wisest  and  fittest  ordinances,  and  qualified  with  the  most 
foreseeing  and  circumspect  savings  and  provisoes :  and  lastly, 
'tis  the  best  ponder'd  in  all  the  words  and  clauses  of  it  of 
any  statute  that  I  find. 

GILB.,  USES,  73.  The  Design  of  this  Law  was  utterly  to 
abolish  and  destroy  that  pernicious  Way  of  Conveyance; 
and  the  Means  they  took  to  do  it  was  to  make  the  Possession 
fall  in  with  the  Use  in  the  same  Manner  as  the  Use  was  lim- 
ited ;  and  where  they  were  all  Freeholds,  it  was  thought  they 
would  be  then  subject  to  the  Rules  of  Common  Law;  but 
the  Method  has  not  answered  the  Legislature's  Intent ;  for  it 
has  introduced  several  Sorts  of  Conveyances  quite  opposite 
to  the  Rules  of  Common  Law;  for  now  wherever  a  Use  is 
raised,  the  Statute  gives  cestui  que  use  the  Possession;  so 
that  'tis  only  necessary  to  form  a  Use,  and  the  Possession 
passes,  without  any  Livery  or  Record  at  all ;  and  the  Rever- 
sions, without  the  Attornment  of  particular  Tenants;  and 
how  the  other  Purposes  of  the  Statute  be  evaded  will  after 
appear. 

Sue.,  GILB.  USES,  139.  "  The  design  of  this  law  was  ut- 
terly to  abolish  and  destroy  that  pernicious  way  of  convey- 
ance."— Gilbert. 

Bacon  supports  at  length  the  contrary  opinion,  and  upon 
grounds  which  appear  to  be  unanswerable.  Uses,  p.  39 ;  and 
see  Dy.  362,  b,  pi.  31.  The  object  of  the  statute  was  to  turn 
equitable  into  legal  estates — beyond  this  the  legislature  does 
not  appear  to  have  been  solicitous  to  provide,  although 
from  the  prevalence  of  bargains  and  sales,  they  afterwards 
for  the  sake  of  notoriety,  required  them  to  be  by  indenture 
enrolled.  The  intention  of  the  Statute  of  Uses  was  evaded 
not  by  the  continuance  of  the  same  mode  of  conveyance,  but 
by  equity  upholding  uses  under  the  name  of  trusts.  The 
Statute  of  Enrolment  was,  in  a  great  measure,  rendered  a 


1 62   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

nullity  by  the  introduction  of  the  conveyance  by  lease  and 
release.  .  .  .  See  Hargr.  n.  (3),  Co.  Lit.,  48,  a.  So 
that  now,  as  Lord  C.  J.  Vaughn  observed,  the  principal  use 
of  the  statute  of  27  [Hen.  VIII.]  is  not  to  bring  together  a 
possession  and  use  which  at  one  time  were  separate,  the  one 
from  the  other,  but  to  introduce  a  general  form  of  convey- 
ance by  which  persons  may  execute  their  intents  and  pur- 
poses at  pleasure,  either  by  transferring  their  estates  to 
strangers,  by  enlarging,  diminishing,  or  altering  them  to  and 
among  themselves  at  their  pleasure,  without  observing  that 
rigour  and  strictness  of  law  for  the  possession,  as  was  req- 
uisite before  the  statute.  Vaugh.  50.  Lord  Hardwicke  has  ob-^ 
served  that  by  means  of  trusts  this  statute,  made  upon  great 
consideration,  introduced  in  a  solemn  and  pompous  manner, 
has  had  no  other  effect  than  to  add,  at  most,  three  words  to 
a  conveyance,  i  Atk.  591.  It  is  inaccurate  to  say  that  the 
statute  introduced  several  sorts  of  conveyances  (see  the 
text).  The  old  conveyances  continued,  but  had  a  legal  op- 
eration given  to  them  by  the  statute.  It  may  here  be  ob- 
served that  if  an  estate  would  be  executed  by  the  statute,  as 
a  good  use,  it  would  be  equally  within  the  statute  if  limited 
in  words  as  a  trust.  Therefore  a  conveyance  to  A.  and  his 
heirs,  in  trust  for  B.  and  his  heirs,  would  be  executed  as  ef- 
fectually as  if  the  words  had  been  to  the  use  of  B.  and  his 
heirs. — Sugden's  note. 

DIGBY,  HIST.  REAL  PROP.,  Ch.  VII.,  §  i.  The  object  of 
that  Statute  was,  by  joining  the  possession  or  seisin  to  the 
use  and  interest  (or,  in  other  words,  by  providing  that  all 
the  estate  which  would  by  the  common  law  have  passed  to 
the  grantee  to  uses  should  instantly  be  taken  out  of  him  and 
vested  in  cestui  que  use},  to  annihilate  altogether  the  distinc- 
tion between  the  legal  and  beneficial  ownership,  to  make  the 
ostensible  tenant  in  every  case  also  the  legal  tenant,  liable 
to  his  lord  for  feudal  dues  and  services — wardship,  mar- 
riage, and  the  rest.  As  will  be  pointed  out  in  the  next  chap- 
ter, by  converting  the  use  into  the  legal  interest,  the  Statute 


USES.  163 

did  away  with  the  power  of  disposing  of  interests  in  lands 
by  will,  which  had  been  one  of  the  most  important  results  of 
the  introduction  of  uses.  Probably  these  were  the  chief  re- 
sults aimed  at  by  the  Statute  of  Uses.  A  strange  combina- 
tion of  circumstances — the  force  of  usage  by  which  practices 
had  arisen  too  strong  even  for  legislation  to  do  away  with, 
coupled  with  an  almost  superstitious  adherence  on  the  part 
of  the  courts  to  the  letter  of  the  Statute — produced  the  curi- 
ous result,  that  the  effect  of  the  Statute  of  Uses  was  directly 
the  reverse  of  its  purpose,  that  by  means  of  it  secret  con- 
veyances of  the  legal  estate  were  introduced,  while  by  a 
strained  interpretation  of  its  terms  the  old  distinction  be- 
tween beneficial  or  equitable  and  legal  ownership  was  re- 
vived. What  may  be  called  the  modern  law  of  Real  Prop- 
erty and  the  highly  technical  and  intricate  system  of  convey- 
ancing which  still  prevails,  dates  from  the  legislation  of 
Henry  VIII. 

ID.,  §  2.  It  will  be  easily  seen  that  the  Statute  at  once  en- 
abled a  tenant  in  fee  simple  to  deal  with  his  lands  in  ways 
which  would  have  been  impossible  at  common  law.  For  in- 
stance, at  common  law  a  man  cannot  convey  to  himself  any 
interest  in  lands.  Thus,  suppose  A.  and  B.  are  jointly  seised 
of  lands  as  trustees,  and  A.  dies,  whereby  the  whole  estate 
vests  in  B.,  and  it  is  desired  to  appoint  C.  a  new  trustee,  and 
to  vest  the  lands  in  B.  and  C.  jointly.  Before  the  Statute  it 
would  have  been  necessary  for  B.  to  make  a  feoffment  with 
livery  to  D.  and  his  heirs,  so  that  D.  might  make  a  feoffment 
with  livery  to  B.  and  C.  and  their  heirs ;  after  the  Statute  the 
same  object  might  be  effected  by  one  conveyance,  namely, 
to  D.  and  his  heirs  to  the  use  of  B.  and  C.  and  their  heirs. 
This  is  the  ordinary  mode  of  vesting  trust-estates  in  a  new 
trustee.  So,  by  bringing  the  Statute  into  operation,  a  man 
may  convey  a  legal  estate  to  his  wife,  which  is  impossible 
at  common  law. 

LEAKE,  LAND  LAW,  115.  The  statute  executes  the  use, 
that  is  to  say,  invests  it  with  the  seisin  or  legal  title,  and 


164   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

subjects  it  to  all  the  incidents  of  a  legal  estate.  The  grantee 
to  uses  is  divested  of  all  estate  and  interest  in  the  land,  and 
the  cestui  que  use  becomes  seised  or  possessed  in  law  of  the 
same  estate  and  interest  which  is  limited  to  him  in  the  use. 
The  possession  transferred  by  the  statute  is  equivalent, 
for  most  purposes,  to  that  acquired  by  livery  of  seisin,  or,  in 
case  of  leaseholds,  by  entry. 


CHAPTER  II. 

TRUSTS. 

(a)   Their  Origin. 

i  EQ.  CAS.  ABR.,  383.  Notwithstanding  this  statute  (27 
Hen.  VIII.,  c.  10)  there  are  three  ways  of  creating  an  use 
or  a  trust  which  still  remains  as  at  common  law,  and  is  a 
creature  of  the  Courts  of  Equity,  and  subject  only  to  their 
controul  and  direction,  ist.  Where  a  man  seised  in  fee 
raises  a  term  of  years  and  limits  it  in  trust  for  A.,  etc.,  for 
this  the  statute  cannot  execute,  the  termor  not  being  seised. 
2ndly.  Where  lands  are  limited  to  the  use  of  A.  in  trust  to 
permit  B.  to  receive  the  rents  and  profits,  for  the  statute  can 
only  execute  the  first  use.  3rdly.  Where  lands  are  limited 
to  trustees  to  receive  and  pay  over  the  rents  and  profits  to 
such  and  such  persons,  for  here  the  lands  must  remain  in 
them  to  answer  these  purposes :  and  these  points  were 
agreed  to.  Trin.  1700. — Symson  and  Turner,  per  Curiam. 

DIGBY,  HIST.  REAL  PROP.,  Ch.  VII.,  §  4.  The  object  of 
the  framers  of  the  Statute  of  Uses  was  undoubtedly  to  do 
away  with  the  distinction  between  the  legal  estate  and  the 
beneficial  interest  in  lands  which  had  given  rise  to  the  mis- 
chiefs recited  in  the  preamble  of  the  Statute.  The  properties, 
which  before  the  Statute  had  gathered  round  the  beneficial 
interest  or  use  under  the  judicial  legislation  of  the  Chancel- 
lors now  with  some  modification  attached  to  the  legal  inter- 
est in  lands.  The  modifications  which  the  legal  interest  in 
lands  consequently  underwent,  the  increased  powers  of  dis- 
position and  control  which  the  owner  in  fee  acquired,  have 
already  been  traced.  But  in  some  points  the  Statute  fell 


1 66   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

short  of  what  was  required.  The  principle  that  a  conscien- 
tious obligation  unrecognized  by  the  law  might  be  enforced 
by  the  Chancellor  was  not  affected  by  the  Statute.  If  there- 
fore there  still  were  found  cases  of  the  creation  of  legal 
estates  upon  trust  for  certain  purposes,  which  estates  could 
not  be  executed  or  transferred  from  the  common  law  grantee 
to  the  beneficiary  by  the  force  of  the  Statute,  it  would  be  still 
within  the  power  of  the  Chancellor  to  decree  that  the  con- 
scientious obligations  should  be  carried  out. 

This  occurred  principally  in  three  cases.  In  the  first  place 
an  active  duty  might  be  imposed  on  the  grantee  of  the  land 
to  do  certain  acts  in  reference  to  it  for  the  benefit  of  some- 
body else.  Land  might  be  granted  to  A.  upon  trust  to  collect 
and  pay  over  the  rents  to  B.  Here  it  would  be  evidently  in- 
tended that  A.  should  be  legal  owner,  but  a  conscientious  ob- 
ligation would  bind  him  to  carry  out  the  trust  upon  which  he 
had  received  the  land.  Where,  therefore,  an  active  duty  was 
imposed  on  the  common  law  grantee,  the  use  or  trust  was 
not  executed  by  the  Statute,  but  it  was  left  to  be  enforced  by 
the  Court  of  Chancery.  It  is  not  always  in  practice  an  easy 
matter  to  say  when  the  trust  which  is  imposed  on  the  legal 
owner  is  in  the  nature  of  an  active  duty,  or  when  it  is  a  use, 
trust,  or  confidence  executed  by  the  Statute.  If  lands  are 
conveyed  to  A.  upon  trust  to  allow  B.  to  receive  the  profits, 
no  active  duty  being  imposed  on  A.,  this  use  is  within  the 
;Statute  and  is  executed,  the  legal  estate  vesting  in  B. 

The  second  case  was  where  a  trust  was  declared  upon  a 
leasehold  interest.  It  has  already  been  seen  that  this  case  is 
not  provided  for  by  the  Statute.  If,  therefore,  a  term  of  ten 
years  be  given  to  A.  in  trust  for  B.,  the  legal  estate  vests  in 
A.,  and  the  trust  could  (before  November  i,  1875)  only  be 
enforced  by  the  Court  of  Chancery. 

But  the  most  important  defect,  to  remedy  which  the  juris- 
diction of  the  Court  of  Chancery  was  ultimately  called  into 
action,  arose  from  the  strange  doctrine  laid  clown  in  Tyr- 
rell's  case.1 

1  Dyer,  155,  a  ;  Ditjhv.  375. 


TRUSTS.  167 

It  has  often  been  remarked  that  English  law  bears  traces 
of  the  realist  doctrines  of  the  Schoolmen.  To  deal  with  the 
conception  of  a  use  of  lands  as  if  it  were  a  real  thing,  and 
to  draw  practical  conclusions,  however  inconvenient,  from 
this  abstract  idea,  seemed  perfectly  natural  to  the  lawyers  of 
the  sixteenth  century.  Thus  it  was  a  matter  of  most  serious 
consideration  in  what  manner  the  use  could  be  preserved  so 
as  to  arise  and  take  effect  in  the  case  of  future  contingent 
uses.  For  instance,  in  a  conveyance  to  A.  and  B.  and  their 
heirs  to  the  use  of  C.  and  his  heirs  till  the  marriage  of  D.,  and 
afterward  to  the  use  of  D.  for  life,  remainder  to  the  use  of 
D.'s  eldest  son,  etc.,  it  was  made  a  grave  question  whether 
any  rational  account  could  be  given  of  the  reason  why  these 
future  uses  took  effect.  The  ability  of  the  common  law 
seisin  to  furnish  forth  the  use  had  been  exhausted,  it  had 
supplied  the  vested  legal  interest  of  C.  to  an  extent  co-exten- 
sive with  itself,  but  how  was  it  to  supply  that  of  D.  and  of 
his  unborn  son  besides  ?  Who  could  be  said  to  be  seised  to 
the  use  of  D.'s  unborn  son?  It  is  impossible  even  to  state 
these  difficulties  in  language  intelligible  to  us,  so  completely 
has  the  mode  of  thought  which  gave  them  birth  passed  away. 
But  such  was  the  spirit  in  which  the  Statute  of  Uses  was 
construed. 

Reasoning  of  a  similar  character  led  the  lawyers  to  hold 
that,  when  once  the  Statute  had  been  called  into  operation, 
its  powers  were  exhausted,  and  that,  if  a  feoffment  were 
made  to  A.  and  his  heirs  to  the  use  of  B.  and  his  heirs  to  the 
use  of  C.  and  his  heirs,  it  was  impossible  to  give  any  effect 
to  the  limitation  in  favor  of  C.  That  "  a  use  could*  not  be 
engendered  of  a  use  "  seemed  no  doubt  a  natural  and  intel- 
ligible proposition  to  Saunders,  C.  J.  It  is  a  specimen  of  a 
rule  of  law  with  the  most  important  consequences  springing 
not  from  any  consideration  of  its  relation  to  expediency  or 
to  the  wants  of  the  community,  but  from  an  exaggerated 
conception  of  the  mysterious  qualities  possessed  by  "  a  use 
of  lands,"  and  the  consequences  which  flowed  from  them. 

Thus  the  doctrine  arose  that  there  could  not  be  a  use  upon 


1 68   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

a  use.  If,  therefore,  A.  bargained  and  sold  to  B.  to  the  use 
of  C.»  the  second  use  was  considered  wholly  void.  No  consid- 
eration was  paid  to  the  obvious  intention  of  the  transaction, 
the  consequence  was  supposed  to  follow  from  the  nature  of 
the  use.  Here  then  was  a  case  for  the  interference  of  the 
Chancellor.  It  appears  that  by  the  time  of  Sir  E.  Coke 
the  uses  upon  uses  which  the  common  law  courts  refused 
to  recognize  were  enforced  in  Chancery.  Thus  was  re- 
stored the  distinction  betwen  the  equitable  and  the  legal 
estate,  which  it  had  been  the  design  of  the  Statute  of  Uses 
to  abolish. 

These  second  uses  were  thenceforth  known  under  the 
name  of  trusts.  If  lands  were  conveyed  to  A.  and  his  heirs, 
to  the  use  of  B,  and  his  heirs,  in  trust  for  C.  and  his  heirs, 
B.  had  the  legal  estate  by  force  of  the  Statute  of  Uses.  C.'s 
interest  was  wholly  created  and  protected  by  the  Court  of 
Chancery.  So  if  lands  are  conveyed  to  A.  and  his  heirs  to 
such  uses  as  he  shall  appoint ;  and  he  appoints  to  B.  and  his 
heirs  to  the  use  of  C.  and  his  heirs,  the  legal  estate  is  vested 
in  B.,  and  C.'s  interest  is  equitable  only.  For  all  practical 
purposes  C.  is  the  owner  of  the  estate.  He  can  call  upon  B. 
to  convey  to  him  or  his  nominee ;  he  can  himself  part  with 
his  interest  to  another  person,  for  whom  B.  will,  upon  notice 
given  to  him,  be  a  trustee;  C.'s  estate  will  descend  to  his 
heir,  according  to  the  rules  of  law. 

Such  is  the  origin  of  modern  trusts  under  which  so  large 
a  portion  of  the  land  of  the  country  is  held.  The  student 
must  accustom  himself  to  the  use  and  meaning  of  these 
technical  terms.  The  legal  estate  is  vested  in  the  trustee,  in 
trust  for  the  cestui  que  trust,  who  has  the  equitable  estate. 
Whenever  the  rules  of  law  are  applicable,  trusts  or  equitable 
estates  or  interests  follow  those  rules.  Thus  an  equitable 
estate  may  be  created  in  fee,  in  tail,  for  life,  or  for  years ;  an 
equitable  estate  tail  may  be  barred  in  the  same  way  as  a 
legal  estate  tail ;  it  will  descend  ab  intestato  according  to  the 
rules  regulating  legal  estates ; 'future  estates  in  remainder 
and  executory  interests  can  be  crested  in  the  same  way,  and 


TRUSTS.  169 

are  subject  to  the  rule  against  perpetuity;  the  husband  of 
cestui  que  trust  is  entitled  to  an  estate  by  the  curtesy,  and 
the  widow  (since  3  and  4  Will.  IV.,  c.  105)  to  dower. 

Besides  the  creation  of  trusts  of  lands  expressly  by  a  dec- 
laration of  the  intent  of  the  grantor,  which,  though  com- 
plete in  itself,  is  insufficient  to  convey  the  legal  estate,  there 
is  also  a  large  class  of  what  are  called  implied  trusts.  This 
is  too  large  a  subject  to  be  discussed  here,  and  it  must  be 
sufficient  to  say  that  wherever,  according  to  the  principles 
which  regulated  the  action  of  the  Court  of  Chancery  as  it 
existed  before  November  i,  1875,  it  would  be  inequitable 
from  circumstances  of  fraud,  mistake,  or  otherwise,  for  the 
legal  owner  of  the  land  to  be  also  the  beneficial  owner,  the 
legal  owner  will  be  held  to  be  a  trustee  for  the  person  who 
is  in  equity  entitled  to  the  lands.  Thus  if  a  person  has 
agreed  to  buy  land,  and  has  paid  the  purchase-money  with- 
out receiving  a  formal  conveyance,  the  legal  owner  will  be 
held  to  be  a  trustee  for  him.  » 


(&)  Nature  of  the  Trust  Estate. 

i  WM.  BL.,  179.  A  Difference  was  attempted  to  be  made 
between  Uses  and  Trusts.  I  have  seen  Trusts  invented  for 
the  blackest  Purposes  in  my  Experience,  and  to  subvert  the 
very  Constitution  of  this  Kingdom.  But  this  is  nothing  but 
Abuse  of  both.  But  to  try  if  there  is  or  is  not  any  Difference 
between  them,  the  best  Way  is  to  define  both :  as,  in  order 
to  shew  the  Difference  between  one  Thing  and  another,  'tis 
usual  to  define  the  one  and  the  other,  and  by  comparing  the 
Definitions  find  the  Difference.  Finch,  L.,  2,  c.  22,  fo.  22, 
b,  says  an  Use  is,  where  a  Man  has  any  Thing  to  the  Use  of 
another  upon  Confidence,  that  the  other  shall  take  the 
Profits:  He  who  has  the  Profits,  has  an  Use.  The  other 
Books  say  an  Use  is  neither  Jus  in  Re  nor  ad  Rem,  etc.  Now 
what  is  a  Trust  ?  A  Confidence  for  which  the  Party  is  with- 
out Remedy,  but  in  a  Court  of  Equity.  Lord  Chief  Justice 


I7O   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

does  not  state  any  Difference  in  the  metaphysical  Essence 
between  an  Use  and  a  Trust,  but  that  there  was  a  Difference 
in  the  Law  by  which  the  one  and  the  other  was  directed  ;  and 
I  think  there  is  no  Difference  in  the  Principles,  but  there  is 
a  wide  Difference  in  the  Exercise  of  them.  It  was  as  much 
a  Principle  of  this  Court,  that  the  Use  should  be  considered 
as  the  Land,  or  as  imitating  the  Land,  formerly  as  now ; 
though  the  Rules  were  not  carried  formerly  so  far,  nor  the 
Reasoning  nor  Directions  (when  they  were  less  understood) 
as  at  present.  To  give  a  similar  Instance :  The  Elements 
and  Principles  of  Geometry  were  the  same  in  Euclid's  Time 
as  in  Sir  Isaac  Netvton's,  though  in  the  latter's  Time  the 
Use  of  them  was  much  enlarged. 

It  was  said,  the  Difference  consists  in  this :  That  Equity 
has  shaped  them  much  more  into  real  Estates,  than  before 
when  they  were  Uses.  As  now,  there  is  Tenancy  per  Cur- 
tesy  of  a  Trust ;  they  may  be  intailed ;  and  those  Intails 
barred  by  a  Recovery.  But  why?  Not  from  any  new  Es- 
sence they  have  obtained,  but  from  carrying  the  Principle 
farther,  Quia  JEquitas  sequitur  Legem:  For,  as  between 
the  Trustee  and  the  Cestui  que  Trust,  this  Court  had  Juris- 
diction; and  I  think  they  should  have  equally  extended  in 
this  Court  the  Rules  and  Principles  of  Uses,  as  well  as 
Trusts. 

This,  therefore,  was  the  Effect  of  the  equitable  Jurisdic- 
tions growing  to  Maturity.  Lord  Bacon  says,  they  grew  to 
Credit  and  Strength  by  Degrees.  He  says,  an  Use  is  noth- 
ing but  a  general  Trust,  where  a  Man  will  trust  to  the  Con- 
science of  another,  rather  than  to  his  own  Estate  and  Pos- 
session. That  an  Use  and  Trust  are  the  same,  seems 
adopted  by  all  the  great  Persons  who  have  presided  in  this 
Court.  Gray  against  Gray,  29  Car.  2. — Per  Henley,  Lord 
Keeper,  in  Burgess  v.  Wheate. 

ID.,  155,  160,  162.  The  opposition  [between  uses  and 
trusts]  is  not  from  any  metaphysical  difference  in  the  essence 
of  the  things  themselves.  An  use  and  a  trust  may  essentially 
be  looked  upon  as  two  names  for  the  same  thing;  but  the 


TRUSTS.  I/I 

opposition  consists  in  the  difference  of  the  practice  of  the 
Court  of  Chancery.  If  uses  before  the  Stat.  of  H.  8  were 
considered  as  a  pernancy  of  the  profits,  as  a  personal  confi- 
dence, as  a  chose  in  action;  and  now  trusts  are  considered  as 
real  estates,  as  the  real  ownership  of  the  land ;  so  far  they 
may  be  said  to  differ  from  the  old  uses ;  though  the  change 
may  not  be  so  much  in  the  nature  of  the  thing,  as  in  the  sys- 
tem of  law  made  use  of  upon  it.  ... 

In  my  apprehension,  trusts  were  not  on  a  true  foundation 
till  Lord  Nottingham  held  the  great  seal.  By  steadily  pur- 
suing, from  plain  principles,  trusts  in  all  their  consequences, 
and  by  some  assistance  from  the  legislature,  a  noble,  rational 
and  uniform  system  of  law  has  been  since  raised.  Trusts 
are  made  to  answer  the  exigencies  of  families  and  all  pur- 
poses, without  producing  one  inconvenience,  fraud,  or  pri- 
vate mischief  which  the  Stat.  Hen.  8  meant  to  avoid. 

The  forum  where  it  is  adjudged  is  the  only  difference  be- 
tween trusts  and  legal  estates.  Trusts  here  are  considered 
as  between  the  cestui  que  trust  and  trustee,  and  all  claiming 
by,  through,  or  under  them,  or  in  consequence  of  their 
estates,  as  the  ownership  and  as  legal  estates,  except  when 
it  can  be  pleaded  in  bar  of  the  exercise  of  this  right  of  juris- 
diction. Whatever  would  be  the  rule  of  law,  if  it  was  a 
legal  estate,  is  applied  in  equity  to  a  trust  estate.  The  Stat- 
ute of  Frauds  speaks  of  devises  only  of  lands  and  tenements ; 
yet  the  trust,  being  considered  in  this  court  as  the  land  and 
tenement,  can  only  be  devised  as  lands  and  tenements  may 
pursuant  to  that  statute.  .  .  . 

It  would  be  endless  and  unnecessary  to  enumerate  the 
various  consequences  through  which  the  principle  has  been 
pursued  that  a  trust  in  Chancery  is  the  estate  at  law,  since 
22  Car.  2.  Among  others  it  has  been  declared  that  the  hus- 
band should  be  tenant  per  curtesy  of  a  trust.  The  case  of 
dower  is  the  only  exception,  and  not  on  law  and  reason,  but 
because  that  wrong  determination  had  misled  in  too  many 
instances  to  be  now  altered  and  set  right.  .  .  . 

To  conclude  this  head.    An  use  or  trust  heretofore  was, 


172   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

while  it  was  a  use,  understood  to  be  merely  as  an  agreement, 
by  which  the  trustee  and  all  claiming  from  him  in  privity 
were  personally  liable  to  the  cestui  que  trust  and  all  claim- 
ing under  him  in  like  privity.  Nobody  in  the  post  was  en- 
titled under,  or  bound  by,  the  agreement.  But  now  the  trust 
in  this  court  is  the  same  as  the  land,  and  the  trustee  is  con- 
sidered merely  as  an  instrument  of  conveyance;  therefore 
is  in  no  event  to  take  a  benefit;  and  the  trust  must  be  co- 
extensive with  the  legal  estate  of  the  land,  and  where  it  is 
not  declared  it  results  by  necessary  implication;  because 
the  trustee  is  excluded,  except  where  the  trust  is  barred  in 
the  case  of  a  purchaser  for  valuable  consideration  without 
notice. — Per  Lord  Mansfield,  in  Burgess  v.  Wheate. 

LEAKE,  LAND  LAW,  131.  The  system  of  trusts  is  formed 
upon  the  same  general  principles  of  equity  as  that  of  uses 
before  the  Statute;  but  it  has  been  much  more  largely  de- 
veloped, and  in  some  points  with  different  results.  Like 
uses  before  the  Statute,  trusts  may  be  raised  by  express  dec- 
laration, or  by  construction  of  equity;  and  they  may  be 
raised  upon  two  conditions  of  the  legal  estate — upon  a  con- 
veyance of  the  legal  estate,  vesting  it  in  another  for  the  pur- 
pose of  or  subject  to  the  trust — or  without  any  such  con- 
veyance, by  severing  the  equitable  interest  from  the  legal 
estate  as  previously  vested,  leaving  the  legal  owner  in  the 
position  of  trustee.  Upon  a  conveyance  of  the  legal  estate, 
a  declaration  of  trust  is  sufficient  to  denote  the  intention  of 
the  conveyance,  and  to  direct  the  course  of  the  trust  or 
equitable  estate.  If  the  legal  conveyance  is  effectually  made, 
the  Court  of  Equity  enforces  the  trust  according  to  such 
direction. 

ID.,  126-129.  The  cestui  que  trust  is  entitled  in  equity  to 
the  possession  and  enjoyment  of  the  land,  or  to  receive 
the  profits  or  proceeds  of  it,  and  to  dispose  of  the  same 
according  to  the  terms  of  the  trust.  The  result  is  some- 
times expressed  by  the  phrase,  that  in  the  Court  of  Chan- 
cery "  the  equity  is  the  land  " ;  and  the  cestui  que  trust  is 


TRUSTS.  173 

said,  by  analogy,  to  be  seised  or  possessed  of  an  equitable 
estate. 

The  Court  of  Equity  recognizes  the  legal  owner  of  the 
land  and  admits  his  title,  but  makes  him  wholly  subservient 
to  the  equitable  owner.  It  restrains  him  from  exercising  his 
legal  rights  for  his  own  benefit,  and  compels  him  to  hold, 
defend,  and  dispose  of  the  legal  estate  for  the  sole  purpose 
of  maintaining  and  realizing  the  equitable  estates  and  inter- 
ests prescribed  in  the  trust.  The  cestui  que  trust,  in  general, 
may  compel  the  trustee  to  put  him  in  possession  of  the  prop- 
erty to  which  he  is  beneficially  entitled ;  but  where  the  cestui 
que  trust  is  not  exclusively  interested,  and  other  parties 
have  also  claims,  the  court  will  exercise  a  discretion  as  to 
whether  the  possession  shall  remain  with  the  trustee  or  be 
given  to  the  cestui  que  trust,  subject  to  such  claims  and  with 
proper  securities  for  them. 

The  jurisdiction  of  the  courts  of  law,  on  the  other  hand, 
is  confined  to  the  legal  ownership,  at  least  in  theory,  and  in 
regulating  the  rights  of  property  takes  no  cognizance  of  any 
trust  or  equitable  estate  or  interest.  In  relation  to  the  trus- 
tee or  legal  owner,  the  cestui  que  trust,  if  in  possession, 
though  in  accordance  with  the  trust,  is  in  the  position  of  a 
mere  tenant  at  will;  and  with  regard  to  the  legal  title,  as 
against  strangers,  the  possession  of  the  cestui  que  trust  is 
the  possession  of  the  trustee.1 

There  may  thus  be  two  different  titles  to  the  same  land 
subsisting  concurrently,  the  legal  and  the  equitable  title, 
regulated  respectively  by  the  different  systems  of  law  and 
equity,  but  the  title  at  law  being  held  in  subservience  to  the 
equitable  title.  A  title  to  land  is  not  complete  unless  it  is 

1  Parker  v.  Carter,  4  Hare,  400.  Notwithstanding  doctrines  ad- 
vanced by  Lord  Mansfield  in  the  last  century,  at  the  present  day  it  may 
be  regarded  as  established:  First,  that  a  cestui  que  trust  cannot  recover 
in  ejectment  in  his  own  name,  but  must  bring  his  action  in  the  name  of 
the  trustee,  who  must  be  indemnified  against  the  costs;  secondly,  that  the 
trustee,  as  the  tenant  of  the  legal  estate,  may  recover  in  ejectment  from 
his  own  cestui  que  trust,  who  has  no  defence  to  the  action  at  law,  but 
must  have  recourse  to  an  injunction  in  equity.  Lewin,  440. 


174   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

fully  recognized  under  both  systems ;  and  a  purchaser  under 
a  contract  of  sale  is  entitled,  in  general,  to  have  conveyed 
to  him  a  good  title  both  at  law  and  in  equity.  .  .  . 

If  the  absolute  equitable  and  legal  titles  unite  in  one  per- 
son, the  law  alone  is  sufficient  to  maintain  the  rights  of  the 
owner,  and  equity  does  not,  in  general,  interfere ;  in  such 
case  the  equitable  estate  is  said  to  merge  in  the  legal  and 
no  longer  exists ;  the  beneficial  use  and  enjoyment  is  referred 
wholly  to  the  legal  title. 

Where  the  legal  estate  is  held  simply  upon  trust  for  an- 
other absolutely,  the  cestui  que  trust  may  be  entitled  in 
equity  to  have  the  legal  estate  conveyed  to  him,  so  as  to  in- 
vest the  equitable  interest  with  the  legal  estate.  But  when, 
as  generally  is  the  case  in  the  creation  of  trusts,  many  per- 
sons are  interested  concurrently  or  successively,  and  each 
cestui  que  trust  has  only  a  partial  interest,  it  is  then  no  part 
of  his  right  to  have  the  legal  estate,  but  it  is  essential  that  the 
legal  estate  should  remain  in  the  trustee  in  order  to  support 
the  various  equitable  estates  and  interests. 

ID.,  139.  In  the  regulation  of  trusts,  equity,  in  general, 
follows  the  law;  except  where  the  different  nature  of  the 
jurisdiction  excludes  any  analogy. 

ID.,  140.  But  the  rules  of  tenure  have  no  application  to 
the  equitable  estate ;  for  the  trustee  is  equally  recognized  to 
be  the  legal  tenant,  bound  by  the  duties  of  tenure,  in  equity 
as  at  law. 

ID.,  143.  The  land,  remaining  at  law  the  property  and  at 
the  disposal  of  the  trustee,  is  subject,  in  his  hands,  to  all  the 
incidents  of  legal  ownership.  It  passes  by  his  conveyance 
or  devise,  or  descends  to  his  heir.  But  the  trust,  or  equitable 
title,  is,  for  the  most  part,  independent  of  the  casualties 
affecting  the  legal  ownership  and,  as  a  general  rule,  follows 
and  attaches  upon  the  land  through  all  the  devolutions  of 
the  legal  title.  All  persons  who  take  through  or  under  the 
trustee,  as  his  grantee  (except  a  purchaser  for  value  with- 
out notice  of  the  trust),  devisee,  heir,  executor,  or  admin- 
istrator, are  equally  bound  by  the  trust.  Also  creditors  of 


TRUSTS.  175 

the  trustee,  obtaining  execution  against  the  property  held 
in  trust  in  exercise  of  their  legal  right,  would  be  restrained 
in  equity  or  would  themselves  be  declared  to  be  trustees. 
So  a  trustee  in  bankruptcy  has  no  claim  against  property 
held  by  the  bankrupt  upon  trusts. 

An  exception  occurs  with  a  purchaser  acquiring  the  legal 
estate  from  the  trustee  for  a  valuable  consideration  and 
without  notice  of  the  trust.  The  trust  is  thereby  displaced 
and  extinguished  as  to  the  land ;  for  the  purchaser,  in  such 
case,  has  an  equal  equity  with  the  former  equitable  owner, 
and  having  the  legal  estate  is  allowed  to  retain  it,  according 
to  the  maxim,  in  cequali  jure  melior  est  conditio  possidentis. 
The  former  equitable  owner  is  left  to  his  claim  against  the1 
trustee  personally  for  the  breach  of  trust  in  parting  with  the 
trust  property.  The  purchaser  for  value  without  notice  can 
convey  a  good  title,  discharged  of  the  trust,  even  to  a  pur- 
chaser with  notice,  except  to  the  trustee  who  committed  the 
breach  of  trust ;  in  whose  hands  the  land,  though  purchased 
for  value,  would  be  restored  to  the  trust,  in  order  to  meet 
his  original  breach  of  trust.  A  purchaser  or  person  acquir- 
ing the  trust  property  from  a  trustee,  without  giving  any 
value  or  consideration  for  it,  as  by  a  voluntary  gift  or  de- 
vise, is  charged  with  the  trust  and  all  equities  affecting  the 
property  to  the  same  extent  as  the  trustee  from  whom  he 
took,  whether  he  had  notice  of  the  trust  or  not. 

LEWIN,  TRUSTS,  822.  Until  the  recent  Act  [47  &  48  Viet., 
c.  71]  a  trust  in  fee  of  lands  was  not  subject  to  escheat. 
This  was  determined  in  the  great  case  of  Burgess  v.  Wheate 
(i  Eden,  176;  s.  c.  i  W.  Bl.  123),  before  Lord  Northing- 
ton,  assisted  by  Lord  Mansfield  and  Sir  T.  Clarke.  The 
arguments  of  these  eminent  judges  will  amply  repay  a  very 
careful  perusal.  It  may  be  mentioned  generally  that  Sir  T. 
Clarke  and  Lord  Mansfield,  while  they  pursued  different 
lines  of  reasoning,  carried  their  principles  to  too  great  an 
excess.  Sir  Thomas  Clarke  contended  that  trusts  must  be 
governed  strictly  by  uses,  and,  therefore,  as  no  escheat  in 


176   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

equity  was  of  a  use,  there  could  be  none  of  a  trust.  But 
this  position  is  too  large ;  for  trusts  do  not  follow  absolutely 
the  law  of  uses ;  for  then  no  curtesy  would  be  of  a  trust,  the 
judgment  creditor  would  have  no  lien,  and  equitable  inter- 
ests would  .not  be  assets.  Lord  Mansfield,  on  the  other  hand, 
advanced  the  doctrine  that,  as  lands  escheat  at  law,  so  trusts 
must  escheat  in  equity ;  that  trusts,  since  the  statute  of  H.  8, 
are  not  regulated  by  uses,  but  the  maxim  is,  "  Equity  follows 
law," — "  The  trust  is  the  estate."  But  to  this  it  must  be 
answered  that  a  trust  has  always  been  recognized  as  a  thing 
sui  generis  and  not  as  identical  with  the  legal  fee :  it  binds 
not,  for  instance,  a  purchaser  for  valuable  consideration 
without  notice.  The  intermediate  opinions  of  Lord  North- 
ington  are  to  be  regarded  as  those  most  in  accordance  with 
the  general  system:  trusts,  he  thought,  were  to  be  admin- 
istered on  the  footing  of  uses;  but  not,  as  Sir  Thomas 
Clarke  maintained,  to  the  exclusion  of  the  improvements 
adopted  subsequently  to  the  statute  of  H.  8 ;  he  agreed  with 
Lord  Mansfield  that  trusts  imitated  the  legal  possession ;  but 
he  added  the  qualification,  as  between  the  primes  to  the 
trust  only,  and  not  as  respected  strangers :  his  objection  to 
the  claim  of  the  lord  was,  that  it  was  for  the  execution  of  a 
trust  that  did  not  exist :  where  there  was  a  trust  it  should 
be  considered  in  that  court  as  the  real  estate  between  the 
cestiti  que  trust  and  the  trustee  and  all  claiming  by  or  under 
them;  and  the  trustee  should  take  no  beneficial  interest' that 
the  cestui  que  trust  could  enjoy ;  but  he  knew  of  no  instance 
where  that  court  ever  permitted  the  creation  of  a  trust  to 
affect  the  right  of  a  third  person. 

The  result  of  the  determination  in  Burgess  v.  Wheate,  as 
followed  in  more  recent  cases,  was  that,  where  the  owner  of 
the  equitable  fee  died  intestate  without  heirs,  the  trustee  re- 
tained the  estate.  .  .  .  Now,  by  "  The  Intestates' 
Estates  Act,  1884,"  where  a  person  dies  without  an  heir  and 
intestate  as  to  any  equitable  estate  or  interest  in  any  cor- 
poreal or  incorporeal  hereditament,  whether  devised  or  not 
devised  to  trustees  by  the  will  of  such  person,  the  law  of 


TRUSTS.  177 

escheat  shall  apply  in  the  same  manner  as  if  the  estate  or  in- 
terest were  a  legal  estate  in  corporeal  hereditaments.1 

N.  Y.  REAL  PROP.  LAW.,  §  71.  Uses  and  trusts  concern- 
ing real  property,  except  as  authorized  and  modified  by  this 
article,  have  been  abolished ;  every  estate  or  interest  in  real 
property  is  deemed  a  legal  right,  cognizable  as  such  in  the 
courts,  except  as  otherwise  prescribed  in  this  chapter. 

§  75.  An  implied  or  resulting  trust  shall  not  be  alleged 
or  established,  to  defeat  or  prejudice  the  title  of  a  purchaser 
for  a  valuable  consideration  without  notice  of  the  trust. 

§  76.  An  express  trust  may  be  created  for  one  or  more  of 
the  following  purposes : 

1.  To  sell  real  property  for  the  benefit  of  creditors. 

2.  To  sell,  mortgage,  or  lease  real  property  for  the  benefit 
of  annuitants  or  other  legatees,  or  for  the  purpose  of  satis- 
fying any  charge  thereon. 

3.  To  receive  the  rents  and  profits  of  real  property,  and 
apply  them  to  the  use  of  any  person,  during  the  life  of  that 
person,  or  for  any  shorter  term,  subject  to  the  provisions  of 
law  relating  thereto. 

4.  To  receive  the  rents  and  profits  of  real  property,  and  to 
accumulate  the  same  for  the  purposes  and  within  the  limits 
prescribed  by  law. 

§  78.  Where  a  trust  is  created  to  receive  the  rents  and 
profits  of  real  property,  and  no  valid  direction  for  accumu- 
lation is  given,  the  surplus  of  such  rents  and  profits,  beyond 
the  sum  necessary  for  the  education  and  support  of  the  bene- 
ficiary, shall  be  liable  for  the  claims  of  his  creditors  in  the 
same  manner  as  other  personal  property,  which  cannot  be 
reached  by  execution. 

§  80.  Except  as  otherwise  prescribed  in  this  chapter,  an 
express  trust,  valid  as  such  in  its  creation,  shall  vest  in  the 
trustee  the  legal  estate,  subject  only  to  the  execution  of  the 
trust,  and  the  beneficiary  shall  not  take  any  legal  estate  or 

'Similar  statutes  have  been  enacted  in  most  of  the  United  States.— 
ED. 


178   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

interest  in  the  property,  but  may  enforce  the  performance  of 
the  trust. 

§  83.  The  right  of  a  beneficiary  of  an  express  trust  to 
receive  rents  and  profits  of  real  property  and  apply  them  to 
the  use  of  any  person,  cannot  be  transferred  by  assignment 
or  otherwise ;  but  the  right  and  interest  of  the  beneficiary  of 
any  other  trust  may  be  transferred.  Whenever  a  beneficiary 
in  a  trust  for  the  receipt  of  the  rents  and  profits  of  real  prop- 
erty is  entitled  to  a  remainder  in  the  whole  or  a  part  of  the 
principal  fund  so  held  in  trust  subject  to  his  beneficial  estate 
for  a  life  or  lives,  or  a  shorter  term,  he  may  release  his  in- 
terest in  such  rents  and  profits,  and  thereupon  the  estate  of 
the  trustee  shall  cease  in  that  part  of  such  principal  fund  to 
which  such  beneficiary  has  become  entitled  in  remainder, 
and  such  trust  estate  merges  in  such  remainder. 

§  84.  Where  an  express  trust  is  created,  but  is  not  con- 
tained or  declared  in  the  conveyance  to  the  trustee,  the  con- 
veyance shall  be  deemed  absolute  as  to  the  subsequent  cred- 
itors of  the  trustee  not  having  notice  of  the  trust,  and  as  to 
subsequent  purchasers  from  the  trustee,  without  notice  and 
for  a  valuable  consideration. 

§  85.  If  the  trust  is  expressed  in  the  instrument  creating 
the  estate,  every  sale,  conveyance  or  other  act  of  the  trustee, 
in  contravention  of  the  trust,  except  as  provided  in  this  sec- 
tion, shall  be  absolutely  void.  .  .  . 

§  89.  When  the  purpose  for  which  an  express  trust  is 
created  ceases,  the  estate  of  the  trustee  shall  also  cease. 

§  91.  On  the  death  of  the  last  surviving  or  sole  trustee  of 
an  express  trust,  the  trust  estate  shall  not  descend  to  his 
heirs  nor  pass  to  his  next  of  kin  or  personal  representatives ; 
but  in  the  absence  of  a  contrary  direction  on  the  part  of  the 
person  creating  the  same,  such  trust,  if  unexecuted,  shall 
vest  in  the  Supreme  Court,  with  all  the  powers  and  duties  of 
the  original  trustee,  and  shall  be  executed  by  some  person 
appointed  for  that  purpose  under  the  direction  of  the 
court. 


C.  JOINT  OWNERSHIP. 

CHAPTER  I. 
JOINT  TENANCY. 

•  DIGBY,  HIST.  REAL  PROP.,  Chap.  V.,  §  4.  Another  class 
of  rights  which  attained  greater  precision  during  the  inter- 
val under  consideration  [from  the  end  of  the  reign  of 
Edward  I.  to  the  end  of  the  reign  of  Henry  VIII.]  and 
assumed  the  characteristics  which  they  have  possessed  ever 
since,  are  those  which  are  enjoyed  by  two  or  more  persons 
who  are  simultaneously  entitled  to  rights  of  property  over 
the  same  piece  of  land,  From  the  earliest  times  it  must  have 
been  common  for  two  or  more  persons  to  have  undivided 
interests  of  some  kind  in  land.  By  the  time  of  Littleton  three 
kinds  of  undivided  ownership  had  come  to  be  distinguished 
as  having  different  attributes.  The  persons  entitled  are 
called  joint-tenants,  tenants  in  common,  coparceners.  The 
main  characteristics  of  this  class  of  rights  will  sufficiently 
appear  from  the  subjoined  extracts.  The  point  of  resem- 
blance between  the  three  kinds  is  that  the  co-owners  have 
no  separate  estate  or  interest  in  any  distinct  portion  of  the 
land  over  which  they  have  simultaneously  rights  of  prop- 
erty, they  are  each  interested,  according  to  the  extent  of 
their  share,  in  every  part  of  the  whole  land  and  its  proceeds.. 

LIT.,  §  277.    foyntenants  are  as  if  a  man  bee  seised  of 
certaine  lands  or  tenements,  &c.,  and  infeoffeth  two,  three,, 
foure,  or  more,  to  have  and  to  hold  to  them  for  terme  of 
their  lives,  or  for  terme  of  another's  life,  by  force  of  which 
feoffement  or  lease  they  are  seised ;  these  are  joyntenants. 


ISO   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

§  278.  Also,  if  two  or  three,  &c.,  disseise  another  of 
any  lands  or  tenements  to  their  own  use,  then  the  disseisors 
are  joyntenants.  But  if  they  disseise  another  to  the  use  of 
one  of  them,  then  they  are  not  joyntenants ;  but  hee  to  whose 
use  the  disseisin  is  made  is  sole  tenant,  and  the  others  have 
nothing  in  the  tenancy,  but  are  called  coadjutors  to  the  dis- 
seisin, &c. 

§  280.  And  it  is  to  be  understood,  that  the  nature  of 
joyntenancy  is,  that  hee  which  surviveth  shall  have  only  the 
entire  tenancie,  according  to  such  estate  as  hee  hath,  if  the 
joynture  be  continued,  &c.  As  if  three  joyntenants  bee  in 
fee-simple,  and  the  one  hath  issue  and  dyeth,  yet  they  which 
survive  shall  have  the  whole  tenements,  and  the  issue  shall 
have  nothing.1  And  if  the  second  joyntenant  hath  issue 
and  dye,  yet  the  third  which  surviveth  shall  have  the  whole 
tenements  to  him  and  to  his  heires  for  ever.  But  otherwise 
it  is  of  parceners;  for  if  three  parceners  be,  and  before  any 
partition  made  the  one  hath  issue  and  dyeth,  that  which  to 
him  belongeth  shall  descend  to  his  issue.  And  if  such  par- 
cener die  without  issue,  that  which  belongs  to  her  shall  de- 
scend to  her  co-heires,  so  as  they  shall  have  this  by  descent, 
and  not  by  survivor  as  joyntenants  shall  have,  &c. 

§  281.  And  as  the  survivour  holds  place  betweene 
joyntenants,  in  the  same  manner  it  holdeth  place  betweene 
them  which  have  joynt  estate  or  possession  with  another  of 
a  chattell,  reall  or  personall.  As  if  a  lease  of  lands  or  tene- 
ments bee  made  to  many  for  terme  of  yeares,  hee,  which  sur- 
vives of  the  lessees,  shall  have  the  tenements  to  him  only 
during  the  terme  by  force  of  the  same  lease.  And  if  a  horse 
or  any  other  chattell  personall  be  given  to  many,  hee  which 
surviveth  shall  have  the  horse  onely.2 

§  282.     In  the  same  manner  it  is  of  debts  and  duties, 

1  This  is  the  essential  characteristic  of  joint-tenancy,  distinguishing  it 
both  from  coparcenary  and  from  tenancy  in  common. — Digby. 

*  There  is  and  has  always  been  an  exception  in  the  case  of  property 
jointly  owned  for  purposes  of  trade  :  "the  maxim  being,  "  Jus  accrescendi 
inter  mercatores  locum  non  habet." — Digby. 


JOINT    TENANCY.  l8l 

&c.,  for  if  an  obligation  be  made  to  many  for  one  debt,  hee 
which  surviveth  shall  have  the  whole  debt  or  dutie.  And  so 
is  it  of  other  covenants  and  contracts,  &c. 

§  283.  Also,  there  may  be  some  joyntenants  which  may 
have  a  joint  estate,  and  be  jointenants  for  terme  of  their 
lives,  and  yet  have  severall  inheritances.  As  if  lands  be 
given  to  two  men  and  to  the  heires  of  their  two  bodies  be- 
gotten, in  this  case  the  donees  have  a  joint  estate  for  term 
of  their  two  lives,  and  yet  they  have  severall  inheritances ; 
for  if  one  of  the  donees  hath  issue  and  dye,  the  other  which 
surviveth  shall  have  the  whole  by  the  survivor  for  terme 
of  his  life,  and  if  he  which  surviveth  hath  also  issue 
and  die,  then  the  issue  of  the  one  shall  have  the  one  moitie 
and  the  issue  of  the  other  shall  have  the  other  moity  of 
the  land,  and  they  shal  hold  the  land  betweene  them  in 
common,  and  they  are  not  joyntenants,  but  are  tenants  in 
common.  .  .  . 

§  285.  Also,  if  lands  be  given  to  two  and  to  the  heires 
of  one  of  them,  this  is  a  good  joynture,  and  the  one  hath 
a  freehold,  and  the  other  a  fee-simple.  And  if  he  which  hath 
the  fee  dieth,  he  which  hath  the  freehold  shall  have  the 
entiertie  by  survivor  for  terme  of  his  life.  In  the  same  man- 
ner it  is,  where  tenements  bee  given  to  two  and  the  heirs  of 
the  body  of  one  of  them  engendred,  the  one  hath  a  freehold, 
and  the  other  a  fee-taile,  &c. 

§  287.  Also  if  there  be  two  joyntenants  of  land  in  fee- 
simple  within  a  borough  where  lands  and  tenements  are 
devisable  by  testament,  and  if  the  one  of  the  said  two 
joyntenants  deviseth  that  which  to  him  belongeth  by  his 
testament,  &c.,  and  dieth,  this  devise  is  voide.  And  the  cause 
is,  for  that  no  devise  can  take  effect  till  after  the  death  of 
the  devisor,  and  by  his  death  all  the  land  presently  commeth 
by  the  law  to  his  companion  which  surviveth,  by  the  sur- 
vivor, the  which  hee  doth  not  claim,  nor  hath  anything  in 
the  land  by  the  devisor,  but  in  his  own  right  by  the  survivor 
according  to  the  course  of  law,  &c.,  and  for  this  cause  such 
devise  is  void.  But  otherwise  it  is  of  parceners  seised  of 


1 82   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

tenements  devisable  in  like. case  of  devise,  &c.  causa  qua 
supra. 

§  288.  Also  it  is  commonly  said  that  every  jointenant 
is  seised  of  the  land  which  hee  holdeth  joyntly  per  my  et  per 
tout;  and  this  is  as  much  to  say,  as  he  is  seised  by  every 
parcell  and  by  the  whole,  &c.,  and  this  is  true,  for  in  every 
parcell  and  by  every  parcell  and  by  al  the  lands  and  tene- 
ments he  is  joyntly  seised  with  his  companion. 

§  290.  Also,  joyntenants  (if  they  will)  may  make  par- 
tition betweene  them,  and  the  partition  is  good  enough ; 
but  they  shall  not  bee  compelled  to  doe  this  by  the  law ;  but 
if  they  will  make  partition  of  their  own  will  and  agreement, 
the  partition  shal  stand  in  force. 

Co.  LIT.,  187,  a.  This  is  true  regularly ;  but  by  the  cus- 
tome  of  some  cities  and  boroughs,  one  joyntenant  or  tenant 
in  common  may  compell  his  companion,  by  writ  of  partition 
grounded  upon  the  custome,  to  make  partition.  But  since 
Littleton  wrote  joyntenants  and  tenants  in  common  gener- 
ally are  compellable  to  make  partition  by  writ  framed  upon 
the  statutes  of  31  &  32  H.  8.  And  albeit  they  be  now  com- 
pellable to  make  partition,  yet,  seeing  they  are  compellable 
by  writ,  they  must  pursue  the  statutes  and  cannot  make  par- 
tition by  parol,  for  that  remaines  at  the  common  law. 

LIT.,  §  291.  Also,  if  a  joynt  estate  be  made  of  land  to 
a  husband  and  wife  and  to  a  third  person,  in  this  case  the 
husband  and  wife  have  in  law  in  their  right  but  a  moity,  and 
the  third  person  shall  have  as  much  as  the  husband  and  wife, 
viz.,  the  other  moity,  &c.  And  the  cause  is,  for  that  the  hus- 
band and  wife  are  but  one  person  in  law,  and  are  in  like 
case  as  if  an  estate  be  made  to  two  joyntenants,  when  the 
one  hath  by  force  of  the  joynture  the  one  moity  in  law,  and 
the  other  the  other  moity,  &c.  In  the  same  manner  it  is  where 
an  estate  is  made  to  the  husband  and  wife  and  to  two  other 
men,  in  this  case  the  husband  and  wife  have  but  the  third 
part,  and  the  other  two  men  the  other  two  parts,  &c.  causa 
qua  supra. 


JOINT    TENANCY.  iS'l 

y 

2  BL.  COM.,  179-182.  The  properties  of  a  joint-estate  are 
derived  from  its  unity,  which  is  fourfold :  the  unity  of  inter- 
est, the  unity  of  title,  the  unity  of  time  and  the  unity  of 
possession;  or,  in  other  words,  joint-tenants  have  one  and 
the  same  interest,  accruing  by  one  and  the  same  conveyance, 
commencing  at  one  and  the  same  time,  and  held  by  one  and 
the  same  undivided  possession. 

F_JLSt,  they  must  have  one  and  the  same  interest.  One 
jomtr.tenant Cannot  be  entitled  to  one  period  of  duration  or 
quantity  of  interest  in  lands,  and  the  other  to  a  different; 
one  cannot  be  tenant  for  life,  and  the  other  for  years ;  one 
cannot  be  tenant  in  fee,  and  the  other  in  tail.  But  if  land  be 
limited  to  A.  and  B.  for  their  lives,  this  makes  them  joint- 
tenants  of  the  freehold;  if  to  A.  and  B.  and  their  heirs,  it 
makes  them  joint-tenants  of  the  inheritance.  If  land  be 
granted  to  A.  and  B.  for  their  lives,  and  to  the  heirs  of  A.; 
here  A.  and  B.  are  joint-tenants  of  the  freehold  during  their 
respective  lives,  and  A.  has  the  remainder  of  the  fee  in  sever- 
ally :  or  if  land  be  given  to  A.  and  B.  and  the  heirs  of  the 
body  of  A.;  here  both  have  a  joint-estate  for  life, and  /4.hath 
a  several  remainder  in  tail,  Se^o^dly,  joint-tenants  must 
also  have  a  unity  of  title;  their  estate  must  be  created  by  one 
and  the  same  act,  whether  legal  or  illegal ;  as  by  one  and  the 
same  grant,  or  by  one  and  the  same  disseisin.  Joint-tenancy 
cannot  arise  by  descent  or  act  of  law ;  but  merely  by  pur- 
chase or  acquisition  by  the  act  of  the  party ;  and,  unless  that 
act  be  one  and  the  same,  the  two  tenants  would  have  differ- 
ent titles;  and  if  they  had  different  titles,  one  might  prove 
good  and  the  other  bad,  which  would  absolutely  destroy  the 
jointure.  Thirdly,  there  must  also  be  a  unity  of  time;  their 
estates  mustDe  vested  at  one  and  the  same  period,  as  well 
as  by  one  and  the  same  title.  As  in  case  of  a  present  est 
made  to  A.  and  B. ;  or  a  remainder  in  fee  to  A.  and  B.  after 
a  particular  estate ;  in  either  case  A.  and  B.  are  joint-tenants 
of  this  present  estate,  or  this  vested  remainder.  But  if,  after 
a  lease  for  life,  the  remainder  be  limited  to  the  heirs  of  A. 
and  B.;  and  during  the  continuance  of  the  particular  estate 


184   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

A.  dies,  which  vests  the  remainder  of  one  moiety  in  his  heir ; 
and  then  B.  dies,  whereby  the  other  moiety  becomes  vested 
in  the  heir  of  B.;  now  A.'s  heir  and  B.'s  heir  are  not  joint- 
tenants  of  this  remainder,  but  tenants  in  common ;  for  one 
moiety  vested  at  one  time,  and  the  other  moiety  vested  at 
another.  Yet  where  a  feoffment  was  made  to  the  use  of 
a  man,  and  such  wife  as  he  should  afterwards  marry,  for 
term  of  their  lives,  and  he  afterwards  married ;  in  this  case 
it  seems  to  have  been  held  that  the  husband  and  wife  had 
a  joint-estate,  though  vested  at  different  times:  because 
the  use  of  the  wife's  estate  was  in  abeyance  and  dormant  till 
the  intermarriage ;  and,  being  then  awakened,  had  relation 
back,  and  took  effect  from  the  original  time  of  creation. 
Lastly,  in  joint-tenancy  there  must  be  a  unity  of  bnxxrs'tiryi. 
Joint-tenants  are  said  to  be  seised  per  my  et  per  tout,  by  the 
half  or  moiety,  and  by  all;  that  is,  they  each  of  them  have 
the  entire  possession,  as  well  of  every  parcel  as  of  the 
whole.  They  have  not,  one  of  them  a  seisin  of  one  half  or 
moiety,  and  the  other  of  the  other  moiety;  neither  can  one 
be  exclusively  seised  of  one  acre,  and  his  companion  of  an- 
other ;  but  each  has  an  undivided  moiety  of  the  whole,  and  ^ 
not  the  whole  of  an  undivided  moiety. 

4  KENT  COMM.,  361.  The  common  law  favored  title  by 
joint-tenancy,  by  reason  of  this  very  right  of  survivorship. 
Its  policy  was  averse  to  the  division  of  tenures,  because  it 
tended  to  multiply  the  feudal  services  and  weaken  the  effi- 
cacy of  that  connection.  But  in  Hawes  v.  Howes,  I  Wils. 
Rep.  165,  Lord  Hardwicke  observed  that  the  reason  of  that 
policy  had  ceased  with  the  abolition  of  tenures ;  and  he 
thought  that  even  the  courts  of  law  were  no  longer  inclinid 
to  favour  them,  and,  at  any  rate,  they  were  not  favoured  in 
equity,  for  they  were  a  kind  of  estates  that  made  no  pro- 
vision for  posterity.  As  an  instance  of  the  equity  view  of 
the  subject,  we  find  that  the  rule  of  survivorship  is  not  ap- 
plied to  the  case  of  money  loaned  by  two  or  more  creditors 
on  a  joint  mortgage.  The  right  of  survivorship  is  also  re- 


JOINT    TENANCY.  185 

jected  in  all  cases  of  partnerships,  for  it  would  operate  very 
unjustly  in  such  cases.  In  this  country  the  title  by  joint- 
tenancy  is  very  much  reduced  in  extent,  and  the  incident  of 
survivorship  is  still  more  extensively  destroyed,  except 
where  it  is  proper  and  necessary,  as  in  the  case  of  titles  held 
by  trustees. 

In  New  York,  as  early  as  1786,  estates  in  joint-tenancy 
were  abolished,  except  in  executors,  and  other  trustees,  un- 
less the  estate  was  expressly  declared,  in  the  deed  or  will 
creating  it,  to  pass  in  joint-tenancy.  The  New  York  Revised 
Statutes  (i  R.  S.  727,  sec.  44)  have  re-enacted  the  pro- 
vision, and  with  the  further  declaration,  that  every  estate, 
vested  in  executors  or  trustees,  as  such,  shall  be  held  in 
joint-tenancy.  The  doctrine  of  survivorship  incident  to 
joint-tenancy  (excepting,  I  presume,  estates  held  in  trust*) 
is  abolished  in  the  States  of  Connecticut,  Pennsylvania, 
Virginia,  Kentucky,  Indiana,  Missouri,  Tennessee,  North 
and  South  Carolina,  and  Alabama.  In  the  States  of  Maine, 
New  Hampshire,  Massachusetts,  Rhode  Island,  Vermont, 
New  Jersey,  Michigan,  Illinois,  and  Delaware,  joint-ten- 
ancy is  placed  under  the  same  restrictions  as  in  New  York ; 
and  it  cannot  be  created  but  by  express  words;  and,  when 
lawfully  created,  it  is  presumed  that  the  common  law  in- 
cidents belonging  to  that  tenancy  follow.  The  English  law 
of  joint-tenancy  does  not  exist  at  all  in  Ohio  and  Louisiana, 
and  it  exists  in  full  force  in  Georgia,  Mississippi,  and  Mary- 
land. 

N.  Y.  REAL  PROP.  LAW,  §  56.  Every  estate  granted  or 
devised  to  two  or  more  persons  in  their  own  right  shall  be  a 
tenancy  in  common,  unless  expressly  declared  to  be  in  joint- 
tenancy  ;  but  every  estate  vested  in  executors  or  trustees  as 
such  shall  be  held  by  them  in  joint  tenancy.  This  section 
shall  apply  as  well  to  estates  already  created  or  vested  as  to 
estates  hereafter  granted  or  devised. 


CHAPTER  II. 

TENANCY  IN  COMMON. 

LIT.,  §  292.  Tenants  in  common  are  they  which  have 
lands  or  tenements  in  fee-simple,  fee-taile  or  for  terme  of 
life,  &c.,  and  they  have  such  lands  or  tenements  by  severall 
titles,  and  not  by  a  joynt  title,  and  none  of  them  know  of 
this  his  severall,  but  they  ought  by  the  law  to  occupie  these 
lands  or  tenements  in  common,  and  pro  indiviso  to  take  the 
profits  in  common.  And  because  they  come  to  such  lands  or 
tenements  by  severall  titles  and  not  by  one  joynt  title,  and 
their  occupation  and  possession  shall  be  by  law  betweene 
them  in  common,  they  are  called  tenants  in  common.  As  if 
a  man  infeoff  two  joyntenants  in  fee,  and  the  one  of  them 
alien  that  which  to  him  belongeth  to  another  in  fee,  now  the 
alienee  and  the  other  jointenant  are  tenants  in  common, 
because  they  are  in  such  tenements  by  severall  titles,  for  the 
alienee  cometh  to  the  moytie  by  the  feoffement  of  one  of  the 
joyntenants,  and  the  other  joyntenant  hath  the  other 
moitie  by  force  of  the  first  feoffement  made  to  him  and  to 
his  companion,  &c.  And  so  they  are  in  by  severall  titles, 
that  is  to  say,  by  severall  feoffements,  &c. 

§  294.  Also,  if  three  joyntenants  bee,  and  one  of  them 
alien  that  which  to  him  belongeth  to  another  man  in  fee,  in 
this  case  the  alienee  is  tenant  in  common  with  the  other  two 
joyntenants;  but  yet  the  other  two  joyntenants  are  seised 
of  the  two  parts  which  remain  joyntly,  and  of  these  two 
parts  the  survivor  between  them  two  holdeth  place,  &c. 

§  298.  Also,  if  lands  bee  given  to  two  to  have  and  to 
hold,  soil,  the  one  moity  to  the  one  and  to  his  heires,  and  the 
other  moity  to  the  other  and  to  his  heires,  they  are  tenants 
in  common. 


TENANCY    IN    COMMON.  187 

§  299.  Also,  if  a  man  seised  of  certaine  lands  infeoff 
another  of  the  moitie  of  the  same  land  without  any  speech 
of  assignement  or  limitation  of  the  same  moity  in  severaltie 
at  the  time  of  the  feoffment,  then  the  feoffee  and  feoffor 
shall  hold  their  parts  of  the  land  in  common. 

§  301.  Also,  if  a  man  let  lands  to  two  men  for  terme 
of  their  lives,  and  the  one  grants  all  his  estate  of  that 
which  belongeth  to  him  to  another,  then  the  other  tenant 
for  terme  of  life  and  he  to  whom  the  grant  is  made  are 
tenants  in  common  during  the  time  that  both  the  lessees  be 
alive. 

And  memorandum,  that  in  all  other  such  like  cases, 
although  it  be  not  here  expressly  moved  or  specified,  if  they 
be  in  like  reason  they  are  in  the  like  law. 

§  304.  And  if  three  joyntenants  be,  and  the  one  re- 
lease by  his  deed  to  one  of  his  companions  all  the  right 
which  he  hath  in  the  land,  then  hath  he  to  whom  the  release 
is  made  the  third  part  of  the  lands  by  force  of  the  said  re- 
lease, and  he  and  his  companion  shall  hold  the  other  two 
parts  in  joynture.  And  as  to  the  third  part,  which  he  hath 
by  force  of  the  release,  he  holdeth  that  third  part  with  him- 
selfe  and  his  companion  in  common. 

§  309.  Also,  if  two  parceners  be,  and  the  one  alieneth 
that  to  her  belongeth  to  another,  then  the  other  parcener  and 
the  alienee  are  tenants  in  common. 

§  310.  Also  note,  that  tenants  in  common  may  bee  by 
title  of  prescription,  as  if  the  one  and  his  ancestors  or  they 
whose  estate  he  hath  in  one  moitie  have  holden  in  common 
the  same  moitie  with  the  other  tenant  which  hath  the  other 
moity,  and  with  his  ancestors,  or  with  those  whose  state 
he  hath  undivided,  time  out  of  minde  of  man.  And  divers 
other  manners  may  make  and  cause  men  to  be  tenants  in 
common,  which  are  not  here  exprest,  &c. 

§  318.  Also,  tenants  in  common  may  well  make  par- 
tition between  them  if  they  will,  but  they  shall  not  be  com- 
pelled to  make  partition  by  the  law;  but  if  they  make  par- 
tition betweene  themselves  by  their  agreement  and  consent, 


1 88   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

such  partition  is  good  enough,  as  is  adjudged  in  the  book  of 
assises. 

§  319.  Also,  as  there  bee  tenants  in  common  of  lands 
and  tenements,  &c.,  as  aforesaid,  in  the  same  manner  there 
be  of  chattells  reals  and  personals.  As  if  a  lease  bee  made 
of  certaine  lands  to  two  men  for  terme  of  twenty  yeares, 
and  when  they  be  of  this  possessed,  the  one  of  the  lessees 
grant  that  which  to  him  belongeth  to  another  during  the 
terme,  then  hee  to  whom  the  grant  is  made  and  the  other 
shall  hold  and  occupie  in  common. 

§  320.  Also,  if  two  have  joyntly  the  wardship  of  the 
body  and  land  of  an  infant  within  age,  and  the  one  of  them 
grant  to  another  that  which  to  himselfe  belongeth  of  the 
same  ward,  then  the  grantee  and  the  other  which  did  not 
grant,  shall  have  and  hold  this  in  common,  &c. 

§  321.  In  the  same  manner  it  is  of  chattels  personals. 
As  if  two  have  joyntly  by  gift  or  by  buying  a  horse  or  an 
oxe,  &c.,  and  the  one  grant  that  to  him  belongs  of  the  same 
horse  or  oxe  to  another,  the  grantee  and  the  other  which  did 
not  grant  shall  have  and  possesse  such  chattels  personals  in 
common.  And  in  such  cases,  where  divers  persons  have 
chattels  real  or  personall  in  common  and  by  divers  titles,  if 
the  one  of  them  dieth  the  others  which  survive  shal  not  have 
this  as  survivor,  but  the  executors  of  him  which  dieth  shall 
hold  and  occupie  this  with  them  which  survive,  as  their 
testator  did  or  ought  to  have  done  in  his  life-time,  &c.,  be- 
cause that  their  titles  and  rights  in  this  were  severall,  &c. 

2  BL.  COM.,  191-194.  Tenants  in  common  are  such  as_ 
hold  b^jpaeral  and  distinct  titles,  but  byumty  of  posses- 
sion,; because  none  knoweth  his  own  severalty,  ana  there- 
fore  they  all  occupy  promiscuously.  This  tenancy  therefore 
happens  where  there  is  a  unity  of  possession  merely,  but 
perhaps  an  entire  disunion  of  interest,  of  title,  and  of  time. 
For  if  there  be  two  tenants  in  common  of  lands,  one  may 
hold  his  part  in  fee-simple,  the  other  in  tail,  or  for  life;  so 
that  there  is  no  necessary  unity  of  interest :  one  may  hold 


TENANCY    IN    COMMON.  189 

by  descent,  the  other  by  purchase ;  or  the  one  by  purchase 
from  A.,  the  other  by  purchase  from  B.;  so  that  there  is  no 
unity  of  title ;  one's  estate  may  have  been  vested  fifty  years, 
the  other's  but  yesterday ;  so  there  is  no  unity  of  time.  The 
only  unity  there  is,  is  that  of  possession ;  and  for  this  Little- 
ton gives  the  true  reason,  because  no  man  can  certainly  tell 
which  part  is  his  own ;  otherwise  even  this  would  be  soon 
destroyed. 

Tenancy  in  common  may  be  created,  either  by  the  de- 
struction of  the  two  other  estates,  in  joint-tenancy  and  co- 
parcenary, or  by  special  limitation  in  a  deed.  By  the 
destruction  of  the  two  other  estates,  I  mean  such  destruction 
as  does  not  sever  the  unity  of  possession,  but  only  the  unity 
of  title  or  interest.  As,  if  one  of  two  joint-tenants  in  fee 
alienes  his  estate  for  the  life  of  the  alienee,  the  alienee  and 
the  other  joint-tenant  are  tenants  in  common ;  for  they  have 
now  several  titles,  the  other  joint-tenant  by  the  original 
grant,  the  alienee  by  the  new  alienation ;  and  they  also  have 
several  interests,  the  former  joint-tenant  in  fee-simple,  the 
alienee  for  his  own  life  only.  So,  if  one  joint-tenant  gives 
his  part  to  A.  in  tail,  and  the  other  gives  his  to  B.  in  tail, 
the  donees  are  tenants  in  common,  as  holding  by  different 
titles  and  conveyances.  If  one  of  two  parceners  alienes,  the 
alienee  and  the  remaining  parcener  are  tenants  in  common ; 
because  they  hold  by  different  titles,  the  parcener  by  descent, 
the  alienee  by  purchase.  So  likewise,  if  there  be  a  grant  to 
two  men,  or  two  ivomen,  and  the  heirs  of  their  bodies,  here 
the  grantees  shall  be  joint-tenants  of  the  life-estate,  but  they 
shall  have  several  inheritances;  because  they  cannot  pos- 
sibly have  one  heir  of  their  two  bodies,  as  might  have  been 
the  case  had  the  limitation  been  to  a  man  and  woman,  and 
the  heirs  of  their  bodies  begotten :  and  in  this,  and  the  like 
cases,  their  issue  shall  be  tenants  in  common ;  because  they 
must  claim  by  different  titles,  one  as  heir  of  A.,  and  the 
other  as  heir  of  B.;  and  those  two  not  titles  by  purchase,  but 
descent.  In  short,  whenever  an  estate  in  joint-tenancy  or 
coparcenary  is  dissolved,  so  that  there  be  no  partition  made, 


READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

but  the  unity  of  possession  continues,  it  is  turned  into  a  ten- 
ancy in  common. 

A  tenancy  in  common  may  also  be  created  by  express  lim- 
itation in  a  deed ;  but  here  care  must  be  taken  not  to  insert 
words  which  imply  a  joint-estate ;  and  then  if  lands  be  given 
to  two  or  more,  and  it  be  not  joint-tenancy,  it  must  be  a  ten- 
ancy in  common.  But  the  law  is  apt  in  its  constructions  to 
favour  joint-tenancy  rather  than  tenancy  in  common ;  be- 
cause the  divisible  services  issuing  from  land  (as  rent,  &c.) 
are  not  divided,  nor  the  entire  services  (as  fealty)  multi- 
plied, by  joint-tenancy,  as  they  must  necessarily  be  upon  a 
tenancy  in  common.  Land  given  to  two,  to  be  holden  the 
one  moiety  to  one,  and  the  other  moiety  to  the  other,  is  an 
estate  in  common;  and,  if  one  grants  to  another  half  his 
land,  the  grantor  and  grantee  are  also  tenants  in  common; 
because,  as  has  been  before  observed,  joint-tenants  do  not 
take  by  distinct  halves  or  moieties;  and  by  such  grants  the 
division  and  severalty  of  the  estate  is  so  plainly  expressed, 
that  it  is  impossible  they  should  take  a  joint-interest  in  the 
whole  of  the  tenements.  But  a  devise  to  two  persons  to 
hold  jointly  and  severally,  is  said  to  be  a  joint-tenancy ;  be- 
cause that  is  necessarily  implied  in  the  word  "jointly,"  the 
word  "severally"  perhaps  only  implying  the  power  of  par- 
tition :  and  an  estate  given  to  A.  and  B.,  equally  to  be 
divided  between  them,  though  in  deeds  it  hath  been  said  to  be 
a  joint-tenancy  (for  it  implies  no  more  than  the  law  has  an- 
nexed to  that  estate,  viz.,  divisibility),  yet  in  wills  it  is  cer- 
tainly a  tenancy  in  common;  because  the  devisor  may  be 
presumed  to  have  meant  what  is  most  beneficial  to  both  the 
devisees,  though  his  meaning  is  imperfectly  expressed. 
And  this  nicety  in  the  wording  of  grants  makes  it  the  most 
usual  as  well  as  the  safest  way,  when  a  tenancy  in  common 
is  meant  to  be  created,  to  add  express  words  of  exclusion 
as  well  as  description,  and  limit  the  estate  to  A.  and  B.  to 
hold  as  tenants  in  common,  and  not  as  joint-tenants. 

As  to  the  incidents  attending  a  tenancy  in  common :  ten- 
ants in  common  (like  joint-tenants)  are  compellable  by  the 


TENANCY    IN    COMMON.  191 

statutes  of  Henry  VIII.  and  William  III.,  before  mentioned, 
to  make  partition  of  their  lands;  which  they  were  not  at 
common  law.  They  properly  take  by  distinct  moieties,  and 
have  no  entirety  of  interest;  and  therefore  there  is  no  sur- 
vivorship between  tenants  in  common.1  Their  other  inci- 
dents are  such  as  merely  arise  from  the  unity  of  possession ; 
and  are  therefore  the  same  as  appertain  to  joint-tenants 
merely  upon  that  account :  such  as  being  liable  to  reciprocal 
actions  of  waste,  and  of  account,  by  the  statutes  of  Westm. 
2.  c.  22 ;  and  4  Ann.  c.  16.  For  by  the  common  law  no  ten- 
ant in  common  was  liable  to  account  with  his  companion  for 
embezzling  the  profits  of  the  estate ;  though,  if  one  actually 
turns  the  other  out  of  possession,  an  action  of  ejectment  will 
lie  against  him.  But,  as  for  other  incidents  of  joint-tenants, 
which  arise  from  the  privity  of  title,  or  the  union  and  en- 
tirety of  interest  (such  as  joining  or  being  joined  in  actions, 
unless  in  the  case  where  some  entire  or  indivisible  thing  is 
to  be  recovered),  these  are  not  applicable  to  tenants  in  com- 
mon, whose  interests  are  distinct,  and  whose  titles  are  not 
joint  but  several. 

Estates  in  common  can  only  be  dissolved  two  ways:  I. 
By  uniting  all  the  titles  and  interests  in  one  tenant,  by  pur- 
chase or  otherwise;  which  brings  the  whole  to  one  sev- 
eralty.  2.  By  making  partition  between  the  several  tenants 
in  common,  which  gives  them  all  respective  severalties.  For 
indeed  tenancies  in  common  differ  in  nothing  from  sole 
estates  but  merely  in  the  blending  and  unity  of  possession. 

1  But  a  tenancy  in  common  with  benefit  of  survivorship  may  exist 
without  being  a  joint-tenancy,  because  survivorship  is  not  the  only 
characteristic  of  a  joint-tenancy.  Per  Bayley,  J.  i  M.  &  S.  435. — Chitty. 


CHAPTER  III. 

PARCENARY. 

LIT.,  §  241.  Parceners  are  of  two  sorts,  to  wit,  par- 
ceners according  to  the  course  of  the  common  law,  and  par- 
ceners according  to  the  custome.  Parceners  after  the  course 
of  the  common  law  are  where  a  man  or  woman,  seised  of 
certain  lands  or  tenements  in  fee  simple  or  in  taile,  hath  no 
issue  but  daughters  and  dieth,  and  the  tenements  descend  to 
the  issues,  and  the  daughters  enter  into  the  lands  or  tene- 
ments so  descended  to  them,  then  they  are  called  parceners, 
and  be  but  one  heire  to  their  ancestour.  And  they  are  called 
parceners,  because  by  the  writ  which  is  called  breve  de  par- 
ticipatione  facienda  the  law  will  constraine  them  that  par- 
tition shall  be  made  among  them.  And  if  there  be  two 
daughters  to  whom  the  land  descendeth,  then  they  bee  called 
two  parceners,  and  if  there  be  three  daughters  they  bee 
called  three  parceners,  and  four  daughters  four  parceners, 
and  so  forth. 

§  242.  Also,  if  a  man  seised  of  tenements  in  fee  sim- 
ple or  in  fee  tayle  dieth  without  issue  of  his  bodie  begotten, 
and  the  tenements  descend  to  his  sisters,  they  are  parceners, 
as  is  aforesaid.  And  in  the  same  manner,  where  he  hath  no 
sisters  but  the  lands  descend  to  his  aunts,  they  are  parcen- 
ers, &c.  But  if  a  man  hath  but  one  daughter,  she  shal  not 
be  called  parcener,  but  shee  is  called  daughter  and  heir,  &c. 

§  243.  And  it  is  to  bee  understood  that  partition  may 
be  made  in  divers  maners.  One  is  when  they  agree  to  make 
partition  and  do  make  partition  of  the  tenements ;  as  if  there 
bee  two  parceners  to  divide  between  them  the  tenements  in 
two  parts,  each  part  by  it  selfe  in  severalty  and  of  equall 


PARCENARY.  193 

value;  and  if  there  bee  three  parceners,  to  divide  the  tene- 
ments in  three  parts  by  it  selfe  in  severalty,  &c. 

§  247.  Also,  there  is  another  partition.  As  if  there 
bee  foure  parceners,  and  they  will  not  agree  to  a  partition 
to  be  made  betweene  them,  then  the  one  may  have  a  writ 
of  partitione  facienda  against  the  other  three,  or  two  of 
them  may  have  a  writ  of  partitione  facienda  against  the 
other  two,  or  three  of  them  may  have  a  writ  of  partitione 
facienda  against  the  fourth,  at  their  election. 

§  250.  And  note,  that  partition  by  agreement  betweene 
parceners  may  bee  made  by  law  betweene  them,  as  well  by 
parol  without  deed  as  by  deed. 

§  254.  And  note  that  none  are  called  parceners  by  the 
common  law  but  females  or  the  heirs  of  females  which  come 
to  lands  or  tenements  by  descent;  for  if  sisters  purchase 
lands  or  tenements,  of  this  they  are  called  joint  tenants  and 
not  parceners. 

§  265.  Parceners  by  the  custom  are  where  a  man  seised 
in  fee  simple  or  in  fee  tail  of  lands  or  tenements  which 
are  of  the  tenure  called  gavelkind  within  the  county  of 
Kent  hath  issue  divers  sons  and  die,  such  lands  or  tene- 
ments shall  descend  to  all  the  sons  by  the  custom,  and  they 
shall  equally  inherit  and  make  partition  by  the  custom,  as 
females  shall  do,  and  a  writ  of  partition  lieth  in  this  case  as 
between  females.  But  it  behoveth  in  the  declaration  to 
make  mention  of  the  custom.  Also  such  custom  is  in  other 
places  of  England,  and  also  such  custom  is  in  North  Wales. 

2  BL.  COM.,  188.  The  properties  of  parceners  are  in  some 
respects  like  those  of  joint-tenants;  they  having  the  same 
unities  of  interest,  title  and  possession.  They  may  sue  and 
be  sued  jointly  for  matters  relating  to  their  own  lands ;  and 
the  entry  of  one  of  them  shall  in  some  cases  enure  as  the 
entry  of  them  all.  They  cannot  have  an  action  of  trespass 
against  each  other;  but  herein  they  differ  from  joint-ten- 
ants, that  they  are  also  excluded  from  maintaining  an  action 
of  waste ;  for  coparceners  could  at  all  times  put  a  stop  to  any 


194   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

waste  by  writ  of  partition,  but  till  the  statute  of  Henry  the 
Eighth  joint-tenants  had  no  such  power.  Parceners  also 
differ  materially  from  joint-tenants  in  four  other  points. 
i.  They  always  claim  by  descent;  whereas  joint-tenants 
always  claim  by  purchase.  Therefore,  if  two  sisters  pur- 
chased lands  to  hold  to  them  and  their  heirs,  they  are  not 
parceners,  but  joint-tenants;  and  hence  it  likewise  follows, 
that  no  lands  can  be  held  in  coparcenary,  but  estates  of  in- 
heritance, which  are  of  a  descendible  nature ;  whereas  not 
only  estates  in  fee  and  in  tail,  but  for  life  or  years,  may  be 
held  in  joint-tenancy.  2.  There  is  no  unity  of  time  neces- 
sary to  an  estate  in  coparcenary.  For  if  a  man  had  two 
daughters,  to  whom  his  estate  descends  in  coparcenary,  and 
one  dies  before  the  other;  the  surviving  daughter  and  the 
heir  of  the  other,  or  when  both  are  dead,  their  two  heirs  are 
still  parceners ;  the  estates  vesting  in  each  of  them  at  differ- 
ent times,  though  it  be  the  same  quantity  of  interest,  and 
held  by  the  same  title.  3.  Parceners,  though  they  have  a 
unity,  have  not  an  entirety  of  interest.  They  are  properly 
entitled  each  to  the  whole  of  a  distinct  moiety;  and  of 
course  there  is  no  jus  accrescendi,  or  survivorship  between 
them ;  for  each  part  descends  severally  to  their  respective 
heirs,  though  the  unity  of  possession  continues.  And  as 
long  as  the  lands  continue  in  a  course  of  descent,  and  united 
in  possession,  so  long  are  the  tenants  therein,  whether  male 
or  female,  called  parceners.  But  if  the  possession  be  once 
severed  by  partition,  they  are  no  longer  parceners,  but  ten- 
ants in  severalty;  or  if  one  parcener  alienes  her  share, 
though  no  partition  be  made,  then  are  the  lands  no  longer 
held  in  coparcenary,  but  in  common. 

4  KENT.  COM.,  367.  By  the  New  York  Revised  Statutes* 
persons  who  take  by  descent  under  the  statute,  if  there  be 
more  than  one  person  entitled,  take  as  tenants  in  common,  in 
proportion  to  their  respective  rights ;  and  it  is  only  in  very 
remote  cases,  which  can  scarcely  ever  arise,  that  the  rules  of 
'2  R.  S.,  753,  sec.  17. 


PARCENARY.  IQ5 

the  common  law  doctrine  of  descent  can  apply.  As  estates 
descend  in  every  State  to  all  the  children  equally,  there  is 
no  substantial  difference  left  between  coparceners  and  ten- 
ants in  common.  The  title  inherited  by  more  persons  than 
one,  is,  in  some  of  the  States,  expressly  declared  to  be  ten- 
ancy in  common,  as  in  New  York  and  New  Jersey ;  and 
where  it  is  not  so  declared  the  effect  is  the  same;  and  the 
technical  distinction  between  coparcenary  and  estates  in 
common  may  be  considered  as  essentially  extinguished  in 
the  United  States. 


CHAPTER  IV. 

TENANCY  BY  ENTIRETIES. 

2  BL.  COM.  182.  If  an  estate  in  fee  be  given  to  a  man  and 
his  wife,  they  are  neither  properly  joint-tenants,  nor  tenants 
in  common.:  for  husband  and  wife  being  considered  as  one 
person  in  law;  they  cannot  take  the  estate  by  moieties,  but 
both  are  seised  of  the  entirety,  per  tout,  et  non  per  my:  the 
consequence  of  which  is,  that  neither  the  husband  nor  the 
wife  can  dispose  of  any  part  without  the  assent  of  the  other, 
but  the  whole  must  remain  to  the  survivor. 

ID.,  182,  n.  According  to  Mr.  Preston's  definition,  tenancy 
by  entireties  is  where  husband  and  wife  take  an  estate  to 
themselves  jointly  by  grant,  or  devise,  or  limitation  of  use 
made  to  them,  during  coverture,  or  by  a  grant,  etc.,  which 
is  in  fieri  at  the  time  of  the  marriage,  and  completed  by  livery 
of  seisin  or  attornment  during  the  coverture.  I  Preston 
on  Estates,  131.  So  if  an  estate  be  conveyed  to  husband 
and  wife  and  a  stranger,  the  husband  and  wife  will  only 
take  one  moiety  between  them,  and  the  stranger  will  take 
the  other  moiety.  Litt.,  s.  291 ;  Johnson  v.  Hart,  6  W.  & 
S.  319.  This  estate  has  several  peculiarities.  Says  C.  J. 
Montague,  in  Plowd.  58:  "The  husband  has  the  entire  use 
and  the  wife  the  entire  use;  for  there  are  no  moieties  be- 
tween husband  and  wife."  Hence  it  is  termed  tenancy  by 
entireties.  The  husband  cannot  forfeit  or  alien  so  as  to 
sever  the  tenancy.  They  are  seised  per  tout  and  not  per  my. 
Neither  can  sever  the  jointure,  but  the  whole  must  accrue 
to  the  survivor.  As  the  husband  and  wife  cannot  sue  each 
other,  they  are  not  compellable  to  make  partition.  But 
where  an  estate  is  conveyed  to  a  man  and  woman  who  are 
not  married  together,  and  who  afterwards  intermarry,  as 


TENANCY    BY    ENTIRETIES.  197 

they  took  originally  by  moieties,  they  will  continue  to 
hold  by  moieties  after  the  marriage.  There  is  nothing, 
therefore,  in  the  relation  of  husband  and  wife  which  pre- 
vents them  from  being  tenants  in  common.  There  are 
great  opinions  in  favour  of  the  position  that  husband  and 
wife  may  by  express  words  be  made  tenants  in  common  by 
a  gift  to  them  during  coverture.  2  Prest.  on  Abstr.  41 ;  i 
Prest.  on  Estates,  132;  4  Kent,  363;  i  Reed's  Blackst.  470. 
The  case  of  Stuckey  v.  Keefe's  Exrs.,  2  Casey,  397,  holds  a 
contrary  doctrine.  The  acts  of  the  legislatures  of  the  va- 
rious States  abolishing  joint-tenancies  and  converting  them 
into  tenancies  in  common  have  been  construed  not  to  extend 
to  tenancies  by  entireties.  Shaw  et  al.  v.  Hearney  et  al., 
5  Mass.  521;  Jackson  v.  Stevens,  16  Johns,  no;  Den  d. 
Hardenbergh  v.  Hardenbergh,  5  Halst.  42 ;  Thornton  v. 
Thornton,  3  Rand.  179. — Sharswood's  note. 

WILLIAMS,  REAL  PROP.  (i7th  ed.),  376.  Tenancy  by  the 
entirety  has  been  generally  recognized  in  the  United  States 
as  one  of  the  common-law  incidents  of  marriage,  and  still 
exists  Wherever  it  has  not  been  expressly  or  impliedly  abro- 
gated by  statute.  In  several  States  it  has  been  held  that 
the  married  women's  acts  have  destroyed  the  common  law 
unity  of  husband  and  wife,  and  that  these  acts,  either  alone 
or  in  connection  with  the  statutes  changing  joint-tenancies 
into  tenancies  in  common  have  practically  abolished  the 
estate  by  entirety.1  For  a  like  reason  the  Supreme  Court  of 
Iowa  has  decided  that  a  conveyance  to  a  husband  and  wife 
creates  a  tenancy  in  common,  unless  a  contrary  intention  is. 
expressed.2  And  in  Kentucky  and  Massachusetts  the  same 
result  is  secured  by  an  express  statutory  provision.3  In  Con- 
necticut and  Ohio,  where  the  doctrine  of  survivorship  has 

'See  Clark  v.  Clark,  56  N.  H.  105  ;  Walthallv.  Goree,  36  Ala.  728;, 
Cooper  v.  Cooper,  76  111.  57. 

J  Hoffman  v.  Stigers,  28  Iowa,  302. 

3  Mass.  Stat.  of  1885,  chap.  237,  §  i;  Gen.  Stat.  of  Ky.  1888,  chap. 
52,  art.  4,  §  13. 


198   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

never  been  recognized,  tenancy  by  the  entirety  does  not 
exist.1  However,  by  the  great  weight  of  authority  the  com- 
mon-law rule  prevails,  notwithstanding  both  the  joint-ten- 
ancy statutes  and  the  married  women's  acts.  Such  is  the 
holding  in  the  following  States:  Arkansas,  Indiana,  Kan- 
sas, Maryland,  Michigan,  Mississippi,  Missouri,  New  Jer- 
sey, New  York,  North  Carolina,  Pennsylvania  and  Ver- 
mont.2 Even  in  these  States  the  husband  and  wife  may 
hold  as  tenants  in  common  or  as  joint-tenants,  if  such  an 
intention  is  clearly  indicated  in  the  instrument  creating  the 
estate.3  And  the  better  opinion  is  that  an  absolute  divorce 
terminates  the  estate  by  the  entirety  and  reduces  it  to  a 
tenancy  in  common.4 — Hutchins'  note. 

1  Whittlesey  v.  Fuller,  n  Conn.  337  ;  Sergeant  v.  Steinbcrger,  2  Ohio, 

305- 

4  See  Robinson  v.  Eagle,  29  Ark.  202  ;  Dodge  v.  Kinzy,  101  Ind.  102  ; 
Baker  v.  Stewart,  40  Kans.  442  ;  Marburg  v.  Cole,  49  Md.  402  ;  Lewis' 
Appeal,  85  Mich.  340  ;  McDuff  v.  Beauchamp,  50  Miss.  531  ;  Garner  v. 
Jones,  52  Mo.  68  ;  Buttlar  v.  Rosenblath,  42  N.  J.  Eq.  651  ;  Bertles  v. 
Nunan,  92  N.  Y.  152  ;  Long  v.  Barnes,  87  N.  C.  329  ;  Diver  v.  Diver, 
56  Pa.  St.  106  ;  Corinth  v.  Emery,  63  Vt.  505.  See,  also,  Pray  Y. 
.Stebbins,  141  Mass.  219. 

*Jooss  v.  Fey,  129  N.  Y.  17  ;  Miner  v.  Brown,  133  N.  Y.  308  ; 
McDermott  v.  French,  15  N.  J.  Eq.  78. 

4  Stelz  v.  Schreck,  128  N.  Y.  263  ;  Harrer  v.  Wallner,  80  111.  197  ; 
Ames  v.  Norman,  4  Sneed  (Tenn.),  683  ;  contra,  Lewis'  Appeal,  85  Mich. 
340. 


BOOK  III. 

ESTATES  IN  LAND. 


A.   FEUDAL  OR  COMMON  LAW  ESTATES. 
/.  Estates  of  Freehold. 

CHAPTER  I. 

THE  FREEHOLD. 

BRACTON,  207.  I  must  then  in  the  first  place  examine  the 
different  kinds  of  tenements.  .  .  . 

Now  it  is  to  be  observed  that  a  freehold  tenement  is  that 
which  a  man  holds  to  himself  and  his  heirs  in  fee  and  in  in- 
heritance, or  in  fee  alone,  to  him  and  his  heirs.  Land  is  also 
held  as  freehold  when  it  is  held  only  for  life,  or  for  an  in- 
definite period,  without  any  fixed  limit  of  time,  as  for 
instance  until  such  a  thing  happens  or  does  not  happen,  as  if 
it  be  said,  "I  give  to  such  a  one  until  I  provide  for  him."  But 
a  tenement  cannot  be  called  a  freehold  which  any  one  holds 
for  a  certain  number  of  years,  months,  or  days,  though  it 
be  for  a  term  of  a  hundred  years,  which  exceeds  the  lives  of 
men.  Further,  a  tenement  cannot  be  called  a  freehold 
which  a  man  holds  at  the  will  of  the  lord  and  by  favour, 


2OO   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

which  may  be  revoked  in  season  or  out  of  season,  as  when  a 
man  holds  from  year  to  year  or  from  day  to  day. 

2  BL.  COM.,  103.  The  next  objects  of  our  disquisitions 
are  the  nature  and  properties  of  estates.  An  estate  in  lands, 
tenements,  and  hereditaments,  signifies  such  interest  as  the 
tenant  has  therein ;  so  that  if  a  man  grants  all  his  estate  in 
Dale  to  A.  and  his  heirs,  everything  that  he  can  possibly 
grant  shall  pass  thereby.  It  is  called  in  Latin  status,  it  sig- 
nifying the  condition,  or  circumstance,  in  which  the  owner 
stands  with  regard  to  his  property.  And  to  ascertain  this 
with  proper  precision  and  accuracy,  estates  may  be  consid- 
ered in  a  threefold  view :  first,  with  regard  to  the  quantity 
of  interest  which  the  tenant  has  in  the  tenement ;  secondly, 
with  regard  to  the  time  at  which  that  quantity  of  interest  is 
to  be  enjoyed ;  and,  thirdly,  with  regard  to  the  number  and 
connections  of  the  tenants. 

First,  with  regard  to  the  quantity  of  interest  which  the 
tenant  has  in  the  tenement,  this  is  measured  by  its  duration 
and  extent.  Thus,  either  his  right  of  possession  is  to  sub- 
sist for  an  uncertain  period,  during  his  own  life,  or  the  life 
of  another  man :  to  determine  at  his  own  decease,  or  to  re- 
main to  his  descendants  after  him :  or  it  is  circumscribed 
within  a  certain  number  of  years,  months,  or  days :  or, 
lastly,  it  is  infinite  and  unlimited,  being  vested  in  him  and 
his  representatives  forever.  And  this  occasions  the  pri- 
mary division  of  estates  into  such  as  are  freehold,  and  such 
as  are  less  than  freehold.  , 

An  estate  of  freehold,  liberum  tenementum,  or  franktene- 
ment,  is  defined  by  Britton1  to  be  "  the  possession  of  the  soil 
by  a  freeman."  And  St.  Germyn2  tells  us,  that  "  the  posses- 
sion of  the  land  is  called  in  the  law  of  England  the  frank- 
tenement  or  freehold."  Such  estate,  therefore,  and  no 
other,  as  requires  actual  possession  of  the  land,  is,  legally 
speaking,  freehold:  which  actual  possession  can,  by  the 
course  of  the  common  law,  be  only  given  by  the  ceremony 
1  C.  32.  *  Dr.  &  Stud.  b.  2,  d.  22. 


THE    FREEHOLD.  2OI 

called  livery  of  seisin,  which  is  the  same  as  the  feodal  in- 
vestiture. And  from  these  principles  we  may  extract  this 
description  of  a  freehold ;  that  it  is  such,  an  estate  in  lands 
as  is  conveyed  by  livery  of  seisin,  or,  in  tenements  of  any 
incorporeal  nature,  by  what  is  equivalent  thereto.  And  ac- 
cordingly it  is  laid  down  by  Littleton,1  that  where  a  freehold 
shall  pass,  it  behooveth  to  have  livery  of  seisin.  As,  there- 
fore, estates  of  inheritance  and  estates  for  life  could  not  by 
common  law  be  conveyed  without  livery  of  seisin,  these  are 
properly  estates  of  freehold;  and,  as  no  other  estates  are 
conveyed  with  the  same  solemnity,  therefore  no  others  are 
properly  freehold  estates.  Estates  of  freehold  (thus  under- 
stood) are  either  estates  of  inheritance,  or  estates  not  of  in- 
heritance. The  former  are  again  divided  into  inheritances 
absolute,  or  fee-simple ;  and  inheritances  limited,  one  species 
of  which  we  usually  call  fee-tail. 

LEAKE,  LAND  LAW,  43.  Estates  for  life  and  estates  of 
inheritance,  being  the  estates  admissible  at  common  law  in 
land  of  freehold  tenure,  are  called  freehold  estates.  An 
estate  for  life  is  sometimes  called  specially  an  estate  of  free- 
hold, or  the  freehold,  as  distinguished  from  the  inheritance, 
which  in  this  sense  includes  the  freehold.  "The  word  free- 
hold is  now  generally  used  to  denote  an  estate  for  life,  in 
opposition  to  an  estate  of  inheritance.  Perhaps  in  the  old 
law  it  meant  rather  the  latter  than  the  former.  It  is  known 
that  fees  were  held  originally  at  the  will  of  the  lord ;  then, 
for  the  life  of  the  tenant;  that  afterwards  they  were  de- 
scendible to  some  particular  heirs  of  the  body  of  the  tenant ; 
then,  to  all  the  heirs  of  his  body ;  and  that  in  succession  of 
time  the  tenant  had  the  complete  dominion  or  power  over 
the  fee.  The  word  freehold  always  imported  the  whole 
estate  of  the  feudatory,  but  varied  as  that  varied."2  Thus, 
the  term  freehold  is  used  to  denote  the  quantity  or  duration 
of  estates  as  well  as  the  tenure  of  the  land. 

1  §  59.  *  Butler's  note  to  Co.  Lit.,  266,  b. 


2O2   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

WILLIAMS,  REAL  PROP.  (i7th  ed.),  71.  Let  us  here 
notice  that  the  essential  quality  of  ownership  belongs 
equally  to  all  freehold  estates.  For  every  freeholder, 
whether  in  fee  simple,  fee  tail,  for  life  or  otherwise,  has  the 
right  to  maintain  or  recover  possession  of  his  land  as 
against  all  the  world.  While  he  remains  in  possession  he 
may  exclude  all  others  from  his  land ;  and  if  he  be  wrong- 
fully ejected,  he  may  recover  possession  of  his  land  by 
peaceable  entry  or  by  action.  And  these  rights  have  been 
secured  to  freeholders  from  the  earliest  days  of  our  com- 
mon law. 

DIGBY,  HIST.  REAL  PROP.,  App.,  §  2.  The  conception  of 
an  "estate"  in  lands  is  a  peculiar  characteristic  of  English 
law.  It  is  regarded,  as  has  been  seen,  as  an  interest  falling 
short  of  complete  ownership,  but  capable  of  differences  in 
extent  or  duration.  Thus  where  an  interest  is  given  to  A. 
for  life,  and  after  his  death  to  B.  for  life,  and  after  his  death 
to  C.  in  fee,  all  these  interests  are  regarded  as  estates,  vary- 
ing in  duration  or  extent,  and  in  the  time  of  their  coming 
into  possession  or  enjoyment.  The  interest  or  right  passes 
at  once  to  the  successive  grantees.  The  grantor  is  regarded, 
not  as  parting  with  the  whole  ownership  to  A.,  with  a  pro- 
viso that  after  A.'s  death  it  is  to  go  to  B.,  and  after  B.'s 
death  to  C.,  but  as  carving  out  of  his  estate  two  smaller  in- 
terests or  estates,  and  then  as  having  still  the  fee  simple  or 
inheritance  to  give  away,  the  grant  of  which  exhausts  all  the 
interest  in  the  lands  which  he  has  to  bestow,  which  yet  does 
not  amount  to  the  complete  ownership  of  the  land.  Thus 
the  fee  simple  is  regarded  as  the  largest  estate — the  nearest 
approach  to  absolute  ownership — which  the  law  recognizes ; 
an  estate  tail,  an  estate  for  life,  an  estate  for  years  are  re- 
garded as  smaller  or  shorter  interests,  which  cannot  exist 
.without  the  fee  simple  at  the  same  time  residing  in  some 
person  other  than  him  who  has  the  smaller  or  "particular" 
estate. 


THE    FREEHOLD. 


203 


2  POLL.  &  MAIT.,  HIST.  ENG.  LAW,  10.  We  thus  come 
upon  a  characteristic  which,  at  all  events  for  six  centuries 
and  perhaps  for  many  centuries  more,  will  be  the  most  sa- 
lient trait  of  our  English  land  law.  Proprietary  rights  in 
land  are,  we  may  say,  projected  upon  the  plane  of  time. 
The  category  of  quantity,  of  duration,  is  applied  to  them. 
The  life  tenant's  rights  are  a  finite  quantity ;  the  fee  ten- 
ant's rights  are  an  infinite,  or  potentially  infinite,  quantity; 
we  see  a  difference  in  respect  of  duration,  and  this  is  the  one 
fundamental  difference.  In  short,  we  are  coming  by  a  law  of 
"estates  in  land."  We  have  as  yet,  though  not  without  a 
conscious  effort,  refrained  from  using  that  term,  and  this 
because,  so  far  as  we  can  see,  it  does  not  belong  to  the  age 
of  Bracton.  On  the  other  hand,  so  soon  as  we  begin  to  get 
Year  Books,  we  find  it  in  use  among  lawyers.  As  already 
said,  it  is  the  Latin  word  status;  an  estate  for  life  is,  in  the 
language  of  our  records,  status  ad  terminum  vitae,  an  estate 
in  fee  simple  is  status  in  feodo  simplici;  but  a  very  curious 
twist  has  been  given  to  that  word.  The  process  of  contor- 
tion cannot  at  this  moment  be  fully  explained,  since,  unless 
we  are  mistaken,  it  is  the  outcome  of  a  doctrine  of  posses- 
sion ;  but  when  once  it  has  been  accomplished,  our  lawyers 
have  found  a  term  for  which  they  have  long  been  to  seek,  a 
term  which  will  serve  to  bring  the  various  proprietary 
rights  in  land  under  one  category,  that  of  duration.  The 
estate  for  life  is  finite,  quia  nihil  certius  morte ;  the  estate 
in  fee  is  infinite,  for  a  man  may  have  an  heir  until  the  end 
of  time.  The  estate  for  life  is  smaller  than  the  estate  in  fee ; 
it  is  infinitely  smaller;  so  that  if  the  tenant  in  fee  breaks 
off  and  gives  away  a  life  estate,  or  twenty  life  estates,  he 
still  has  a  fee.  Thus  are  established  the  first  elements  of  that 
wonderful  calculus  of  estates  which,  even  in  our  own  day,  is 
perhaps  the  most  distinctive  feature  of  English  private  law. 


CHAPTER  II. 

ESTATES  IN   FEE  SIMPLE, 
(a)  Pure  Fee  Simple. 

BRACTON,  17.  There  is  another  division  of  gifts ;  that  is 
to  say,  one  kind  is  simple  and  absolute,  another  is  condi- 
tional, another  is  restricted ;  and  gifts  may  be  made  to  one 
person  or  to  several  in  succession.  ...  A  gift  may  be 
called  simple  and  absolute  when  no  condition  or  restriction 
is  added,  for  that  is  said  to  be  given  absolutely  when  no 
terms  are  annexed  to  the  gift.  As  if  it  be  said,  "I  give  such 
a  one  so  much  land  in  such  a  township  in  return  for  his 

homage  and  service,  to  have  and  to  hold  to  the  said and 

his  heirs  of  me  and  my  heirs,  rendering  for  the  same  by  the 
year  for  himself  and  his  heirs  to  me  and  my  heirs  so  much, 
at  such  terms,  in  discharge  of  all  service  and  secular  cus- 
toms and  claims,"  so  that  the  subject-matter  of  the  gift  be 
certain,  and  the  services  and  customary  rights  which  are  due 
to  the  lord  be  ascertained,  although  other  matters  from 
which  he  is  tacitly  discharged  may  be  uncertain,  "and  I  and 
my  heirs  shall  warrant,  acquit,  and  defend  such  a  one  and 
his  heirs  against  all  persons  for  the  service  aforesaid :"  and 
thus  the  donee  acquires  the  subject  of  the  gift  by  the  title 
of  a  grant,  and  his  heirs  after  him  by  the  title  of  descent, 
and  the  heir  acquires  nothing  from  the  grant  made  to  his 
ancestor,  because  he  is  not  enfeoffed  with  the  donee. 

LIT.,  §  i.  Tenant  in  fee  simple  is  he  which  hath  lands 
or  tenements  to  hold  to  him  and  his  heires  for  ever.  And 
it  is  called  in  Latin  feodum  simplex,  for  feodum  is  the  same 
that  inheritance  is,  and  simplex  is  as  much  as  to  say,  lawfull 


.  ESTATES  IN  FEE  SIMPLE.  205 

or  pure.    And  so  feodum  simplex  signifies  a  lawfull  or  pure 
inheritance.     .     .     . 

Co.  LIT.,  i,  a.  Though  fee,  in  its  general  acceptation,  sig- 
nifies land  holden,  as  distinguished  from  land  allodial;  yet 
in  our  law  it  is  more  frequently  used  in  a  particular  sense, 
to  denote  the  quantity  of  estate  in  land,  which  is  always  the 
sense  of  the  word  when  we  say  that  one  is  tenant  or  seised 
in  fee.  Therefore  Littleton  is  not  merely  justified  in  writ- 
ing that  fee  is  the  same  as  inheritance;*  for  if  in  describing 
who  is  tenant  in  fee  simple,  he  had  explained  the  word 
otherwise,  he  would  have  misled  the  student. — Margrave's 
note  i. 

Co.  LIT.,  i,  b.  "Fee  simple/'  Fee  commeth  of  the  French 
fief,  i.e.,  praedium  beneficiarium,  and  legally  signifieth  in- 
heritance, as  our  author  himselfe  hereafter  expoundeth  it. 
And  simple  is  added,  for  that  it  is  descendible  to  his  heires 
generally,  that  is,  simply,  without  restraint  to  the  heires  of 
his  body,  or  the  like,  Feodum  est  quod  quis  tenet  ex  qua- 
cunque  causa  sive  sit  tenementum,  sive  redditus,  etc.  In 
Domesday  it  is  called  feudum.  Of  fee  simple,  it  is  com- 
monly holden  that  there  be  three  kinds,  viz.,  fee  simple 
absolute,  fee  simple  conditional!,  and  fee  simple  qualified,  or 
base  fee.  But  the  more  genuine  and  apt  division  were  to 
divide  fee,  that  is,  inheritance,  into  three  parts,  viz.,  simple 
or  absolute,  conditionall,  and  qualified  or  base.  For  this 
word  (simple)  properly  excludeth  both  conditions  and  lim- 
itations that  defeat  or  abridge  the  fee.  Hereby  it  ap- 
peareth,  that  fee  in  our  legall  understanding  signifieth,  that 
the  land  belongs  to  us  and  our  heires,  in  respect  whereof  the 
owner  is  said  to  be  seised  in  fee ;  and  in  this  sense  the  king 
is  said  to  be  seised  in  fee. 

LIT.,  §  2.  And  if  a  man  purchase  land  in  fee  simple 
and  die  without  issue,  he  which  is  his  next  cousin  collateral! 
of  the  whole  blood,  how  farre  so  ever  he  be  from  him  in  de- 
gree, may  inherite  and  have  the  land  as  heire  to  him. 


2O6   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

§  II.  And  note,  that  a  man  cannot  have  a  more  large 
or  greater  estate  of  inheritance  than  fee  simple. 

Co.  LIT.,  1 8,  a.  This  doth  extend  as  well  to  fee  simples 
conditional  and  qualified,  as  to  fee  simples  pure  and  ab- 
solute. For  our  author  speaketh  here  of  the  amplenesse  and 
greatnesse  of  the  estate,  and  not  of  the  perdurablenesse  of 
the  same.  And  he  that  hath  a  fee  simple  conditionall  or 
qualified,  hath  as  ample  and  great  an  estate,  as  he  that  hath  a 
fee  simple  absolute ;  so  as  the  diversity  appeareth  betweene 
the  quantity  and  quality  of  the  estate.  From  this  state  in  fee 
simple,  estates  in  taile  and  all  other  particular  estates  are 
derived ;  and  therefore  worthily  our  author  beginneth  his 
First  Booke  with  tenant  in  fee  simple,  for  a  principalioribus 
sen  dignioribus  est  inchoandum. 

2  Ld.  RAYM.,  1148.  There  were  three  sorts  of  estates  of 
inheritance  at  common  law :  First,  an  absolute  estate  of  in- 
heritance to  a  man  and  his  heirs :  Secondly,  a  fee  simple 
qualified  as  to  the  time  of  its  duration ;  as  an  estate  to  a  man 
and  his  heirs  as  long  as  J.  S.  has  heirs  of  his  body,  or  as 
long  as  Bow  church  stands,  or  as  long  as  J.  S.  lives ;  for  in 
these  cases,  though  the  estate  shall  descend  to  a  man's  heirs, 
yet  they  shall  have  it  for  no  longer  time  than  is  contained 
in  the  respective  limitations :  Thirdly,  a  fee  simple  restrained 
as  to  what  heirs  shall  inherit  it.  And  this  was  called  a  fee 
simple  conditional  at  common  law. — Per  Powell,  J.,  in  Idle 
v.  Cook. 

2  BL.  COM.,  104-107.  Tenant  in  fee-simple  (or,  as  he  is 
frequently  styled,  tenant  in  fee)  is  he  that  hath  lands, 
tenements,  or  hereditaments,  to  hold  to  him  and  his  heirs  for- 
ever: generally,  absolutely,  and  simply;  without  mention- 
ing what  heirs,  but  referring  that  to  his  own  pleasure,  or  to 
the  disposition  of  the  law.  The  true  meaning  of  the  word 
fee  (feodum)  is  the  same  with  that  of  feud  or  fief,  and  in 
its  original  sense  it  is  taken  in  contradistinction  to  allo- 


ESTATES    IN    FEE    SIMPLE.  2O/ 

dium;  which  latter  the  writers  on  this  subject  define  to  be 
every  man's  own  land,  which  he  possesseth  merely  in  his 
own  right,  without  owing  any  rent  or  service  to  any  su- 
perior. .  .  . 

This  is  the  primary  sense  and  acceptation  of  the  word 
fee.  But  (as  Sir  Martin  Wright  very  justly  observes1) 
the  doctrine,  "  that  all  lands  are  holden,"  having  been  for 
so  many  ages  a  fixed  and  undeniable  axiom,  our  English 
lawyers  do  very  rarely  (of  late  years  especially)  use  the 
word  fee  in  this  its  primary  original  sense,  in  contra- 
distinction to  allodium,  or  absolute  property,  with  which 
they  have  no  concern ;  but  generally  use  it  to  express  the 
continuance  or  quantity  of  estate.  A  fee,  therefore,  in 
general,  signifies  an  estate  of  inheritance ;  being  the  highest 
and  most  extensive  interest  that  a  man  can  have  in  a  feud : 
and  when  the  term  is  used  simply,  without  any  other  adjunct, 
or  has  the  adjunct  of  simple  annexed  to  it  (as  a  fee,  or 
a  fee-simple),  it  is  used  in  contradistinction  to  a  fee-con- 
ditional at  the  common  law,  or  a  fee-tail  by  the  statute ; 
importing  an  absolute  inheritance,  clear  of  any  condition, 
limitation,  or  restrictions  to  particular  heirs,  but  descendible 
to  the  heirs  general,  whether  male  or  female,  lineal  or  col- 
lateral. And  in  no  other  sense  than  this  is  the  king  said  to 
be  seised  in  fee,  he  being  the  feudatory  of  no  man. 

Taking  therefore  fee  for  the  future,  unless  where  other- 
wise explained,  in  this  its  secondary  sense,  as  a  state  of  in- 
heritance, it  is  applicable  to,  and  may  be  had  in,  any  kind  of 
hereditaments  either  corporeal  or  incorporeal.  But  there  is 
this  distinction  between  the  two  species  of  hereditaments : 
that,  of  a  corporeal  inheritance  a  man  shall  be  said  to  be 
seised  in  his  demesne,  as  of  fee;  of  an  incorporeal  one,  he 
shall  only  be  said  to  be  seised  as  of  fee,  and  not  in  his 
demesne.  For,  as  incorporeal  hereditaments  are  in  their 
nature  collateral  to,  and  issue  out  of  lands  and  houses,  their 
owner  hath  no  property,  dominicum,  or  demesne,  in  the 
thing  itself,  but  hath  only  something  derived  out  of  it;  re- 
1  Of  Ten.  148. 


2O8   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

sembling  the  servitutes,  or  services,  of  the  civil  law.  The 
dominicum  or  property  is  frequently  in  one  man,  while  the 
appendage  or  service  is  in  another.  Thus  Caius  may  be 
seised  as  of  fee  of  a  way  leading  over  the  land  of  which 
Titius  is  seised  in  his  demesne  as  of  fee. 

The  fee-simple  or  inheritance  of  lands  and  tenements  is 
generally  vested  and  resides  in  some  person  or  other; 
though  divers  inferior  estates  may  be  carved  out  of  it.  As 
if  one  grants  a  lease  for  twenty-one  years,  or  for  one  or  two 
lives,  the  fee-simple  remains  vested  in  him  and  his  heirs ; 
and  after  the  determination  of  those  years  or  lives,  the  land 
reverts  to  the  grantor  or  his  heirs,  who  shall  hold  it  again  in 
fee-simple.  Yet  sometimes  the  fee  may  be  in  abeyance,  that 
is  (as  the  word  signifies),  in  expectation,  remembrance, 
and  contemplation  in  law ;  there  being  no  person  in  esse  in 
whom  it  can  vest  and  abide ;  though  the  law  considers  it  as 
always  potentially  existing,  and  ready  to  vest  whenever  a 
proper  owner  appears.  Thus,  in  a  grant  to  John  for  life, 
and  afterwards  to  the  heirs  of  Richard,  the  inheritance  is 
plainly  neither  granted  to  John  nor  Richard,  nor  can  it  vest 
in  the  heirs  of  Richard  till  his  death,  nam  nemo  est  haeres 
viventis;  it  remains  therefore  in  waiting  or  abeyance,  dur- 
ing the  life  of  Richard.  This  is  likewise  always  the  case  of 
a  parson  of  a  church,  who  hath  only  an  estate  therein  for 
the  term  of  his  life;  and  the  inheritance  remains  in  abey- 
ance. And  not  only  the  fee,  but  the  freehold  also,  may  be 
in  abeyance,  as,  when  a  parson  dies,  the  freehold  of  his 
glebe  is  in  abeyance  until  a  successor  be  named,  and  then  it 
vests  in  the  successor. 

LEAKE,  LAND  LAW,  33.  Such  was  the  ultimate  state  of 
the  fee  simple  or  estate  of  inheritance  at  common  law.  It 
conferred  the  largest  rights  of  use  and  enjoyment  allowed 
by  law,  together  with  the  largest  power  of  alienation.  A 
grant  in  fee  simple  left  no  estate  or  interest  in  the  grantor, 
except  the  rights  of  seigniory  appertaining  to  the  lord  by  the 
rules  of  tenure,  among  which  was  the  right  of  escheat, 


ESTATES    IN    FEE    SIMPLE.  2OQ 

whereby  the  lord  was  entitled  to  resume  the  possession  of 
the  land  upon  the  death  of  a  tenant  without  heirs.  But  even 
these  rights  could  not  be  reserved  after  the  statute  Quia 
Emptores;  for  by  the  effect  of  that  statute  the  new  grantee 
held  directly  of  the  same  lord  as  the  grantor  held  before. 

Ultimately  also  the  limitation  "to  the  heirs,"  became  the 
technical  description  of  an  estate  of  inheritance,  which  could 
not  be  legally  expressed  by  any  other  means.  A  grant  to  a 
person  simply  without  extending  it  in  terms  "to  his  heirs," 
and  without  any  other  limitation  of  the  estate  intended,  con- 
tinued to  be  construed  according  to  its  primitive  force  and 
effect,  as  conferring  an  estate  only  for  the  term  of  his  life. 

The  grant  "to  A.  and  to  his  heirs,"  and  a  grant  "to  A.  for 
life  and  alter  his  decease  to  his  heirs,"  according  to  the 
primitive  force  and  effect  of  the  expressions,  were  mani- 
festly identical ;  inasmuch  as  they  both  conferred  life  estates 
upon  A.,  and  upon  the  persons  designated  as  his  heirs  in 
succession.  They  were  still  construed  as  identical,  notwith- 
standing the  change  in  the  position  and  interest  of  the  heir 
consequent  upon  the  enlarged  power  of  alienation  in  the 
ancestor ;  the  limitation  "to  the  heirs,"  in  both  cases,  ceased 
to  confer  directly  any  estate  upon  the  persons  answering  to 
that  designation,  and  was  referred  to  the  estate  of  the  an- 
cestor, which,  though  expressed  to  be  in  the  first  place  for 
life,  it  enlarged  to  an  estate  of  inheritance,  so  that  the  heir 
took  only  by  descent.  This  is  the  origin  and  simplest  form 
of  the  rule  in  Shelley's  case,  an  ancient  rule  of  great  impor- 
tance in  construing  the  limitations  of  estates,  which  will  be 
noticed  more  fully  hereafter.1  At  the  common  law  all  inheri- 
tances were  fee  simple  in  respect  of  the  rights  and  powers 
of  the  tenant.  In  respect  of  duration  they  might  be  absolute 
or  conditional,  that  is,  determinable  by  some  conditional  lim- 
itation. 

ID.,  40.  If  a  tenant  in  fee  simple  granted  to  another  for  a 
term  of  life,  the  alienation  of  the  fee  was  partial  only,  in 
respect  of  duration  of  time,  the  residue  being  left  in  the 
1  See  page  ^\, post.— ED. 


2IO   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

grantor;  and  upon  the  determination  of  the  estate  for  life, 
the  possession  reverted  or  returned  to  him  or  to  his  heirs; 
whence  the  residuary  estate  left  by  such  conveyance  was 
called  a  reversion,  and  the  estate  for  life  was  called,  in  rela- 
tion to  the  reversion,  a  particular  or  partial  estate.  A  rever- 
sion is  defined  as  "that  estate  which  the  lessor  has  after  the 
possession  is  conveyed  to  and  vested  in  another  during  a 
particular  estate."1 

ID.,  41.  A  tenant  in  fee  simple  might  grant  a  particular 
estate,  whether  for  life  or  in  tail,  to  one  person,  and  at  the 
same  time  grant  the  residue  or  remainder,  technically  so- 
called,  of  the  fee  to  another,  leaving  no  reversion  in  him- 
self. A  remainder  is  defined  to  be  "  a  residue  or  remnant 
of  an  estate  in  land,  expectant  upon  a  particular  estate 
created  together  with  the  same  at  one  time."2  So  he  might 
grant  several  particular  estates  successively  in  remainder, 
leaving  the  reversion  in  himself,  or  at  the  same  time  grant- 
ing away  the  ultimate  remainder  in  fee  without  leaving  any 
reversion. 

The  grant  of  an  estate  in  fee  simple  exhausted  the  power 
of  the  grantor;  no  reversion  was  left  nor  could  any  re- 
mainder be  limited  after  such  estate.  On  the  determination 
of  a  fee  simple  for  want  of  heirs,  per  defectum  sanguinis, 
the  land  fell  back  to  the  lord  by  right  of  escheat,  which  was 
not  an  estate  in  the  land,  strictly  so-called,  but  a  right  in- 
cident to  the  seigniory.  A  fee  simple  conditional  at  common 
law  was  equally  extensive  in  this  respect,  and  left  no  rever- 
sion or  residue  at  the  disposal  of  the  grantor.  "One  fee- 
simple  cannot  depend  upon  another  by  the  grant  of  the 
party;  as  if  lands  be  given  to  A.,  so  long  as  B.  hath  heirs 
of  his  body,  the  remainder  over  in  fee,  the  remainder  is 
void."3 

| 

N.  Y.  REAL  PROP.  LAW,  §  21.  An  estate  of  inheritance 
continues  to  be  termed  a  fee  simple,  or  fee,  and,  when  not 

1  Plowd.  196,  and  see  ib.  151.  'Co.  Lit.  49,  a  ;  143,  a. 

3  Co.  Lit.  18,  a  ;  10  Co.  97,  b,  Seymor's  Case. 


ESTATES    IN    FEE    SIMPLE.  21 E 

defeasible  or  conditional,  a  fee  simple  absolute,  or  an  abso- 
lute fee. 

(b)  Limited  Fee  Simple. 

2  BL.  COM.,  109.  A  base,  or  qualified  fee,  is  such  a  one 
as  hath  a  qualification  subjoined  thereto,  and  which  must 
be  determined  whenever  the  qualification  annexed  to  it  is  at 
an  end.  As,  in  the  case  of  a  grant  to  A.  and  his  heirs,  ten- 
ants of  the  manor  of  Dale;  in  this  instance,  whenever  the 
heirs  of  A.  cease  to  be  tenants  of  that  manor,  the  grant  is 
entirely  defeated.  So,  When  Henry  VI.  granted  to  Johm 
Talbot,  lord  of  the  manor  of  Kingston-Lisle  in  Berks,  that 
he  and  his  heirs,  lords  of  the  said  manor,  should  be  peers  of 
the  realm,  by  the  title  of  barons  of  Lisle ;  here  John  Talbot 
had  a  base  or  qualified  fee  in  that  dignity,  and  the  instant 
he  or  his  heirs  quitted  the  seignory  of  this  manor,  the  dig- 
nity was  at  an  end.  This  estate  is  a  fee,  because  by  possi- 
bility it  may  endure  forever  in  a  man  and  his  heirs ;  yet  as 
that  duration  depends  upon  the  concurrence  of  collateral 
circumstances,  which  qualify  and  debase  the  purity  of  the 
donation,  it  is  therefore  a  qualified  or  base  fee. 

SANDERS,  USES,  200.  Before  the  statute  Quia  Emp tores 
(18  Edw.  I.),  an  estate  might  have  been  granted  to  A.  B. 
and  his  heirs,  so  long  as  C.  D.  and  his  issue  should  live,  or 
so  long  as  C.  D.  and  his  heirs  should  be  tenants  of  the 
manor  of  Dale;  and  upon  C.  D.'s  ceasing  to  have  issue,  or 
of  being  tenant  of  the  manor  of  Dale,  the  estate  reverted  to» 
the  donor,  not  as  a  condition  broken,  of  which  the  donor,  or 
his  heir,  might  take  advantage  by  entry ;  but  as  a  principle 
of  tenure,  in  the  nature  of  an  escheat  upon  the  death  of  ar. 
tenant  in  fee  simple  without  heirs  general.  But  the  statute 
of  Quia  Emptores  destroys  the  immediate  tenure  between 
the  donor  and  donee,  in  cases  where  the  fee  is  granted ;  and 
consequently  there  can  now  be  no  reverter,  or  any  estate  or 
possibility  of  a  reversion,  remaining  in  the  donor  after  art 
estate  in  fee  granted  by  him.  This  conclusion  directly  fol- 


212   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

lows  from  the  doctrine  of  tenures,  and  the  effect  of  the 
statute  of  Quia  Emptores  upon  that  doctrine.  The  proposi- 
tion does  not  require  the  aid  of  decided  cases ;  but  the  pas- 
sage in  2  And.  138  contains  an  accurate  exposition  of  the 
law  upon  this  subject :  "If  land  be  given  to  A.  and  his 
heirs,  so  long  as  J.  S.  has  heirs  of  his  body,  the  donee  has 
fee,  and  may  alien  it;  13  Hen.  7511  Hen.  7;  21  Hen.  6,  fol. 
37 ;  and  says  the  law  seems  to  be  plain  in  it ;  and  cites  1 1 
Ass.  8,  where  the  s.  c.  is  put  and  held  as  before ;  and  that 
there  if  the  land  be  given  to  one  and  his  heirs,  so  long  as 
J.  S.  and  his  heirs  shall  enjoy  the  manor  of  D.,  those  words 
(so  long)  are  entirely  void  and  idle,  and  do  not  abridge  the 
estate." 

LEAKE,  LAND  LAW,  35.  A  fee  limited  to  a  person  and 
"to  the  heirs  of  his  body"  or  "to  the  heirs  male  of  his  body," 
or  in  other  form  of  restricted  inheritance,  was  a  fee  simple 
conditional  at  common  law.  It  was  determinable  by  failure 
of  the  line  of  issue  designated  to  succeed,  and  the  land  re- 
verted in  possession  to  the  grantor  or  his  heirs.  But  the 
restriction  upon  the  duration  of  the  fee  did  not,  at  common 
law,  otherwise  affect  the  rights  and  powers  of  the  tenant; 
and  in  respect  of  these  it  remained  a  fee  simple.  So  long 
as  the  fee  lasted  the  tenant  for  the  time  being  had  all  such 
powers,  including  the  power  of  alienation,  as  were  the  in- 
separable incidents  of  an  estate  of  inheritance.  Only  it  was 
adjudged  to  be  a  necessary  condition  of  the  full  effect  of  his 
alienation,  so  as  to  bar  not  only  his  issue,  but  also  the  possi- 
bility of  reverting  to  the  grantor,  that  he  should  have  heri- 
table issue — "the  gift  to  one  and  to  the  heirs  of  his  body 
was  construed  for  the  purpose  of  alienation,  to  be  the  same 
as  a  gift  to  him  and  to  his  heirs,  if  he  had  heirs  of  his 
body."1 

Other   ancient   instances   are   cited   of    fees   simple   con- 
ditional, as :  a  fee  limited  to  A.  and  to  his  heirs  for  so  long 
as  the  Church  of  St.  Paul  shall  stand  ;  to  A.  and  to  his  heirs, 
1  Plovvden,  235,  and  see  ib.  245,  247,  250;  Co.  Lit.,  19,  a. 


ESTATES    IN    FEE    SIMPLE.  213 

tenants  of  the  manor  of  Dale ;  to  A.  and  to  his  heirs,  so  long 
as  A.  or  B.  has  heirs  of  his  body. 

But  the  statute  Quia  Emptores  by  preventing  the  creation 
of  any  tenure  between  the  grantor  and  grantee,  where  the 
fee  was  granted  subsequently  to  the  statute,  put  an  end  to 
any  right  of  reverter  upon  such  grants.  Before  the  statute, 
upon  the  determination  of  the  fee  by  the  conditional  limita- 
tion, the  land  reverted  to  the  grantor  by  way  of  escheat;  for, 
the  grant  having  conveyed  the  whole  fee,  there  was  no  re- 
versionary estate  left  in  the  grantor  to  entitle  him  to  the 
possession.  But  under  such  a  grant  made  after  the  statute 
there  could  be  no  seignory  created  to  which  an  escheat 
would  be  incident ;  and  escheat  to  the  superior  lord  could 
not  occur  until  failure  of  the  original  tenure,  the  terms  of 
which  were  not  altered  by  the  alienation  of  the  tenant. 

DIGBY,  HIST.  REAL  PROP,,  Ch.  V.,  §  3  (2).  It  follows, 
from  the  very  definition  of  a  remainder  above  given,1  that  so 
soon  as  the  fee  simple  is  parted  with,  the  donor  has  given 
away  all  that  he  has  to  grant,  and  can  make  no  ulterior  dis- 
position. A  remainder  limited  to  take  effect  after  a  fee  sim- 
ple estate  is  simply  void.  Nor  is  the  case  altered  when,  as 
has  been  pointed  out  above,  the  estate  in  fee  simple  is  liable 
to  be  terminated  by  the  happening  of  some  specified  event. 
For  instance,  if  an  estate  be  granted  to  A.  and  his  heirs  so 
long  as  he  continues  unmarried,  this  estate  will  come  to  an 
end  upon  A.'s  marriage ;  but  the  rule  that  a  remainder  can- 
not be  limited  after  a  fee  simple  would,  at  common  law,  pre- 
vent the  settlor  from  making  any  ulterior  gift,  such  as  "and 
from  and  after  the  marriage  of  A.  to  B.  and  his  heirs." 

GRAY,  PERPETUITIES,  §  32.  ...  A  fee  simple  subject  to 
a  conditional  limitation,  that  is,  to  a  springing  or  shifting  use 
or  executory  devise,  is  sometimes  called  a  qualified  or  deter- 
minable  fee ;  but  this  is  not  technically  exact.  A  qualified 
fee  is  one  subject  to  a  special  limitation ;  that  is,  a  limitation 
which  marks  the  original  bounds  of  the  estate,  and  after 
1  See  page  326,  post. — ED. 


214       READINGS    IN    THE    LAW    OF    REAL    PROPERTY. 

which,  in  case  of  a  fee,  no  other  estate  can  be  granted.  A 
conditional  limitation,  as  the  term  is  commonly  used,  cuts 
off  the  first  estate  and  introduces  another.  An  estate  to  A. 
.and  his  heirs,  tenants  of  the  Manor  of  Dale,  is  an  instance 
of  a  qualified  fee.  An  estate  to  A.  and  his  heirs,  but  if  he 
dies  unmarried  then  to  B.  and  his  heirs,  is  a  fee  simple  sub- 
ject to  a  conditional  limitation.  Qualified  fees  were  good  at 
common  law,  but  were  done  away  with  by  the  statute  Quia 
Emptores.  Conditional  limitations  were  not  good  at  the 
common  law ;  they  were  first  introduced  by  the  statutes  of 
Uses  and  of  Wills. 

§  3.3.  The  effect,  however,  of  the  statute  Quia  Entptores 
:in  putting  an  end  to  qualified  fees  has  been  often  overlooked, 
though,  as  has  just  been  said,  no  such  fee  has  been  actually 
sustained  in  England  by  decision  since  the  statute. 

§  36.  Mr.  Sanders  was  the  first  author  to  distinctly 
recognize,  or  at  any  rate  to  distinctly  state,  that  the  statute 
Quia  Emptores  put  an  end  to  qualified  fees.  He  says  that 
his  remarks  are  taken  from  an  opinion  of  his  own,  "which 
was  subsequently  well  considered  by  two  gentlemen  of  em- 
inence at  the  bar,  and  signed  by  them."  The  Commis- 
sioners on  Real  Property  (Sir  John  Campbell  and  Messrs. 
Tinney,  Duval,  Hodgson,  Duckworth,  Brodie,  and  Tyrrell, 
all,  except  the  chairman,  among  the  most  eminent  real-prop- 
erty lawyers  of  their  time),  in  their  third  Report,  made  in 
1832,  speaking  of  a  devise  of  an  estate  to  A.  B.  and  his 
heirs,  on  condition  that  they  use  the  name  and  arms  of  C.  D., 
say :  "Some  have  thought  that  the  will  passed  a  fee  simple, 
•determinable  upon  the  non-performance  of  the  condition ; 
but  it  was  not  a  determinable  fee  in  the  proper  sense  of 
the  expression,  if  (as  is  perhaps  the  'true  state  of  the  law 
on  this  subject)  a  determinable  fee  was  an  estate  before  the 
statute  of  Quia  Emptores,  as  upon  a  grant  to  A.  B.  and  his 
heirs,  so  long  as  /.  5".  and  his  issue  shall  live,  in  which  case 
the  donor  retained,  in  the  nature  of  a  right  to  an  escheat,  a 
reversionary  interest  which  arose  on  the  death  of  /.  S.  and 
the  failure  of  his  issue.  But  the  statute  of  Quia  Emptores, 


ESTATES    IN    FEE    SIMPLE.  215 

by  destroying  the  tenure  between  the  donor  and  donee,  in 
cases  where  the  fee  was  granted  subsequently  to  the  statute, 
put  an  end  to  any  right  of  reverter  on  such  grants ;"  and 
reference  is  made  to  the  passage  in  Anderson,  above  quoted. 
The  most  careful  recent  writers  have  adopted  this  view. 

§  38.  In  Pennsylvania  (if  Wallace  v.  Harmstad  is 
unsound)  and  in  South  Carolina  tenure  exists  and  the 
statute  Quia  Emptores  is  not  in  force.1  In  these  States, 
therefore,  apart  from  the  question  of  remoteness,  qualified 
fees  may  be  valid.  In  Scheets  v.  Fitzwater,2  Penn.  R.  R.  Co. 
v.  Parke,z  and  Henderson  v.  Hunter,*  it  was  assumed  that 
fees  simple  determinable  might  be  created. 

§  '39.  In  the  other  States  there  is  either  no  tenure  at  all, 
or,  where  there  is  tenure,  there  is  no  good  reason  to  doubt 
the  existence  of  the  statute  Quia  Emptores.  In  neither  case 
can  there  be  any  possibility  of  reverter.  As  in  England,  so 
in  the  United  States,  there  are,  however,  several  cases  which 
speak  of  such  interests  as  possible. 

4  KENT  COM.,  9-11.  A  qualified,  base,  or  determinable 
fee  (for  I  shall  use  the  words  promiscuously)  is  an  interest 
which  may  continue  forever,  but  the  estate  is  liable  to  be 
determined  without  the  aid  of  a  conveyance,  by  some  act  or 
event,  circumscribing  its  continuance  or  extent.  Though 
the  object  on  which  it  rests  for  perpetuity  may  be  transitory 
or  perishable,  yet  such  estates  are  deemed  fees,  because,  it 
is  said,  they  have  a  possibility  of  enduring  forever.  A  lim- 
itation to  a  man  and  his  heirs,  so  long  as  A.  shall  have  heirs 
of  his  body ;  or  to  a  man  and  his  heirs,  tenants  of  the  manor 
of  Dale ;  or  till  the  marriage  of  B. ;  or  so  long  as  St.  Paul's 
church  shall  stand,  or  a  tree  shall  stand,  are  a  few  of  the 
many  instances  given. in  the  books,  in  which  the  estate  will 
descend  to  the  heirs,  but  continue  no  longer  than  the  period 
mentioned  in  the  respective  limitations,  or  when  the  quali- 
fication  annexed  to  it  is  at  an  end.  If  the  event  marked  out--  , 
as  the  boundary  to  the  time  of  the  continuance  of  the  estate 
1  See  pages  139,  140,  supra.— ED.  5  5  Pa.  126.  '42  Pa.  31.  459  Pa.  335. 


2l6   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

becomes  impossible,  as  by  the  death  of  B.  before  his  mar- 
riage, the  estate  then  ceases  to  be  determinable,  and  changes 
into  a  simple  and  absolute  fee;  but  until  that  time,  the  es- 
tate is  in  the  grantee,  subject  only  to  a  possibility  of  reverter 
in  the  grantor.  It  is  the  uncertainty  of  the  event  and  the 
possibility  that  the  fee  may  last  forever,  that  renders  the 
estate  a  fee,  and  not  merely  a  freehold.  All  fees  liable  to  be 
defeated  by  an  executory  devise  are  determinable  fees,  and 
continue  descendible  inheritances  until  they  are  discharged 
from  the  determihable  quality  annexed  to  them,  either  by 
the  happening  of  the  event,  or  by  a  release.  These  qualified 
or  determinable  fees  are  likewise  termed  base  fees,  because 
their  duration  depends  upon  the  occurrence  of  collateral  cir- 
cumstances, which  qualify  and  debase  the  purity  of  the  title. 
A  tenant  in  tail  may,  by  a  bargain  and  sale,  lease  and  re- 
lease, or  covenant  to  stand  seised,  create  a  base  fee,  which 
will  not  determine  until  the  issue  in  tail  enters. 

If  the  owner  of  a  determinable  fee  conveys  in  fee,  the  de- 
terminable quality  of  the  estate  follows  the  transfer ;  and 
this  is  founded  upon  the  sound  maxim  of  the  common  law, 
that  nemo  potcst  plus  juris  in  alium  transferre  quam  ipse 
habet.  Within  that  rule,  the  proprietor  of  a  qualified  fee 
has  the  same  rights  and  privileges  over  the  estate  as  if  he 
were  a  tenant  in  fee  simple ;  all  the  estate  is  in  the  feoffee, 
notwithstanding  the  qualification,  and  no  remainder  can  be 
limited  over,  nor  any  reversion  expectant  thereon,  other 
than  the  possibility  of  a  reverter  when  the  estate  determines, 
or  the  qualification  ceases.1 

1 10  Co.  97,  6.  Preston  on  Estates,  vol.  i.  484.  According  to  Lord  Ch. 
J.  Vaughan,  the  reverter  in  this  case  is  a  quasi  reversion,  and  he  did  not 
see  why  a  remainder  might  not  be  granted  out  of  such  a  qualified  fee. 
Gardner  v.  Shelden,  Vaughan,  269.  But  the  rule  is  probably  otherwise, 
and  on  a  fee  simple  conditional  at  common  law,  a  remainder  could  not 
be  created,  for  the  fee  was  the  whole  estate.  There  was  only  a  possibil- 
ity, or  right  of  reverter,  left  in  the  donor,  and  that  was  not  an  actual 
estate  (Lee,  Ch.  J.,  in  Martin  v.  Strachan,  5  Term  Rep.  107,  note) ; 
and  yet  Mr.  Preston  (on  Estates,  vol.  ii.  353)  concludes  that  limitations  of 
remainders,  after  qualified  or  limited  estates  of  inheritance,  were  in  use  at 
common  law. 


ESTATES    IN    FEE    SIMPLE. 

155  MASS.  REP.,  171.  The  grant  to  the  plaintiff  was  to 
have  and  to  hold,  etc.,  "so  long  as  said  real  estate  shall  by 
said  society  or  its  assigns  be  devoted  to  the  uses,  interests, 
and  support  of  those  doctrines  of  the  Christian  religion,"  as 
specified.  "And  when  said  real  estate  shall  by  said  society 
or  its  assigns  be  diverted  from  the  uses,  interests,  and  sup- 
tort  aforesaid  to  any  other  interests,  uses,  or  purposes  than 
is  aforesaid,  then  the  title  of  said  society  or  its  assigns  in 
he  same  shall  forever  cease,  and  be  forever  vested  in  the 
'ollowing  named  persons,"  etc.  These  words  do  not  grant 
in  absolute  fee,  nor  an  estate  on  condition,  but  an  estate 
which  is  to  continue  till  the  happening  of  a  certain  event, 
md  then  to  cease.  That  event  may  happen  at  any  time,  or 
t  may  never  happen.  Because  the  estate  may  last  forever, 
t  is  a  fee.  Because  it  may  end  on  the  happening  of  the 
event,  it  is  what  is  usually  called  a  determinable  or  qualified 
fee.  The  grant  was  not  upon  a  condition  subsequent,  and 
no  re-entry  would  be  necessary;  but  by  the  terms  of  the 
grant  the  estate  was  to  continue  as  long  as  the  real  estate 
should  be  devoted  to  the  specified  uses,  and  when  it  should 
no  longer  be  so  devoted,  then  the  estate  would  cease  and 
determine  by  its  own  limitation.  Numerous  illustrations  of 
words  proper  to  create  such  qualified  or  determinable  fees 
are  to  be  found  in  the  books,  one  of  which,  as  old  as  Wal- 
singham's  Case,  2  Plowd.  557,  is  "as  long  as  the  church  of 
St.  Paul  shall  stand."  Brattle  Square  Church  v.  Grant,  3 
Gray,  142,  147.  ...  A  question  or  doubt,  however, 
has  arisen,  though  not  urged  by  counsel  in  this  case, 
whether  after  all  there  is  any  such  estate  as  a  qualified  or 
determinable  fee,  or  whether  this  form  of  estate  was  done 
away  with  by  the  statute  Quia  Emptores.  (See  Gray,  Rule 
against  Perpetuities,  sees.  31-40,  where  the  question  is  dis- 
cussed and  authorities  are  cited.)  We  have  considered  this 
question,  and  whatever  may  be  the  true  solution  of  it  in 
England,  where  the  doctrine  of  tenure  still  has  some  sig- 
nificance, we  think  the  existence  of  such  an  estate  as  a  qual- 
ified or  determinable  fee  must  be  recognized  in  this  coun- 


2l8   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

try,  and  such  is  the  general  consensus  of  opinion  of  courts 
and  text  writers.  Jamaica  Pond  Aqueduct  v.  Chandler,  9 
Allen,  159,  168;  Leonard  v.  Burr,  18  N.  Y.,  96.  ... 

Since  the  estate  of  the  plaintiff  may  determine,  and  since 
there  is  no  valid  limitation  over,  it  follows  that  there  is  a 
possibility  of  reverter  in  the  original  grantor,  Clark.  This 
is  similar  to,  though  not  quite  identical  with,  the  possibility 
of  reverter  which  remains  in  the  grantor  of  land  upon  a 
condition  subsequent.  The  exact  nature  and  incidents  of 
this  right  need  not  now  be  discussed,  but  it  represents  what- 
ever is  not  conveyed  by  the  deed,  and  it  is  the  possibility 
that  the  land  may  revert  to  the  grantor  or  his  heirs  when 
the  granted  estate  determines. — Per  Allen,  J.,  in  Uni- 
versalist  Society  v.  Boland  (1892). 

1 8  N.  Y.  REP.,  96.  The  devise  to  Bailey  is,  by  the  terms 
of  it,  "until  Gloversville  shall  be  incorporated  as  a  village." 
These  words  are  part  of  the  devise  itself.  The  use  of  the 
land,  which  imports  the  land,  fs  given  to  him  until  the  hap- 
pening of  that  event.  The  event  was  contingent  when  the 
will  was  made,  and  at  the  death  of  the  testator.  Had  the 
will  stopped  here,  in  respect  to  a  disposition  of  this  land,  no 
one  would  doubt  that  the  estate  of  Bailey  would  have  been 
limited  in  duration  to  the  contingency  mentioned.  He 
would  have  taken  a  base  or  qualified  fee;  an  estate  which 
might  have  continued  forever,  but  which  would  have  been 
liable  to  determination  by  the  occurring  of  the  contingency. 
The  qualification  to  the  devise  would  have  created  what  is 
termed  in  the  books  a  collateral  limitation,  making  the  estate 
determinable  upon  an  event  "collateral  to  the  time  of  its 
continuance."  4  Kent's  Com.,  129;  Fearne,  ed.  of  1826, 
12  to  15,  and.  notes.  Among  the  instances  of  collateral  lim- 
itations are,  to  a  man  and  his  heirs,  tenants  of  the  manor  of 
Dale ;  or  to  a  woman  during  widowhood ;  or  to  C.  till  the 
return  of  B.  from  Rome;  or  until  B.  shall  have  paid  him 
twenty  pounds.  4  Kent,  129 ;  I  Shep.  Touch.,  125.  .  .  . 
In  respect  to  such  limitations,  the  rule  is,  that  "  the  estate 


ESTATES    IN    FEE    SIMPLE.  2IQ 

will  determine  as  soon  as  the  event  arises,  and  it  never  can 
be  revived."  4  Kent,  129,  and  cases  cited. — Per  Strong,  J., 
in  Leonard  v.  Burr  (1858). 

MASS.  PUB.  STAT.,  121,  §  i.  When  land  is  demised  for 
the  term  of  one  hundred  years  or  more,  the  term  shall,  so 
long  as  fifty  years  thereof  remain  unexpired,  be  regarded  as 
an  estate  in  fee  simple  as  to  everything  concerning  the 
descent  and  devise  thereof  upon  the  decease  of  the  owner, 
the  right  of  dower  therein,  the  estate  in  lieu  of  dower,  the 
sale  thereof  by  executors,  administrators,  guardians,  or 
trustees,  the  levying  of  executions  thereon,  and  the  redemp- 
tion thereof  when  mortgaged  or  when  taken  on  execution; 
and  whoever  holds  as  lessee  or  assignee  under  such  a  lease 
shall,  so  long  as  fifty  years  of  the  term  are  unexpired,  be  re- 
garded as  a  freeholder  for  all  purposes. 


(c)   Creation  -of  Fee  Simple. 

LIT.,  §  i.  .  .  .  For  if  a  man  would  purchase  lands  or 
tenements  in  fee  simple,  it  behooveth  him  to  have  these 
words  in  his  purchase,  To  have  and  to  hold  to  him  and  to  his 
heires ;  for  these  words  (his  heires)  make  the  estate  of  inher- 
itance. For  if  a  man  purchase  lands  by  these  words,  To 
have  and  to  hold  forever ;  or  by  these  words,  To  have  and  to 
hold  to  him  and  his  assignes  forever :  in  these  two  cases  he 
hath  but  an  estate  for  term  of  life,  for  that  there  lacke  these 
words  (his  heires),  which  words  onely  make  an  estate  of 
inheritance  in  all  feoffments  and  grants. 

Co.  LIT.,  8,  b.  And  it  is  to  be  observed,  that  every  word 
of  Littleton  is  worthy  of  observation.  First  (Heires)  in  the 
plurall  number ;  for  if  a  man  give  land  to  a  man  and  to  his 
heire  in  the  singular  number,  he  hath  but  an  estate  for  life, 
for  his  heire  cannot  take  a  fee  simple  by  descent,  because  he 
is  but  one,  and  therefore  in  that  case  his  heire  shall  take 


22O   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

nothing.  Also  observable  is  this  conjunctive  (ct).  For  if  a 
man  give  lands  to  one,  To  have  and  to  hold  to  him  orhis 
heires,  he  hath  but  an  estate  for  life,  for  the  uncertaintie 
(ses,  suis).  If  a  man  give  land  unto  two,  To  have  and  to 
hold  to  them  two  et  haeredibus,  omitting  suis,  they  have  but 
an  estate  for  life,  for  the  uncertainty;  whereof  more  here- 
after in  this  Section.  But  it  is  said,  if  land  be  given  to  one 
man  et  haeredibus,  omitting  suis,  that  notwithstanding  a  fee 
simple  passeth ;  but  it  is  safe  to  follow  Littleton.  .  .  . 
Here  Littleton  treateth  of  purchases  by  naturall  persons, 
and  not  of  bodies  politique  or  corporate ;  for  if  lands  be 
given  to  a  sole  body  politique  or  corporate,  (as  to  a  bishop, 
parson,  vicar,  master  of  an  hospital,  etc.,)  there  to  give  him 
an  estate  of  inheritance,  in  his  politique  or  corporate  ca- 
pacitie,  he  must  have  these  words,  To  have  and  to  hold  to 
him  and  his  successors ;  for  without  these  words  successors, 
in  those  cases  there  passeth  no  inheritance ;  for  as  an  heire 
doth  inherit  to  the  ancestor,  so  the  successor  doth  succeed 
to  the  predecessor,  and  the  executor  to  the  testator.  But  it 
appeareth  here  by  Littleton,  that  if  a  man  at  this  day  give 
lands  to  /.  5".  and  his  successors,  this  createth  no  fee  simple 
in  him;  for  Littleton,  speaking  of  naturall  persons,  saith 
that  these  words  (his  heires)  make  an  estate  of  inheritance 
in  all  feoffments  and  grants,  whereby  he  excludeth  these 
words  (his  successors). 

9,  a.  These  words  (his  heires)  doe  not  onely  extend 
to  his  immediate  heires,  but  to  his  heires  remote  and  most 
remote,  borne  and  to  be  borne,  sub  quibus  vocabulis  (haer- 
edibus suis}  omnes  haeredes  propinqui  comprehenduntur, 
et  remoti,  nati,  et  nascituri.  And  haeredum  appellatione 
veniunt  haeredes  haeredum  in  infinitum.  And  the  reason 
wherefore  the  law  is  so  precise  to  prescribe  certaine  words 
to  create  an  estate  of  inheritance,  is  for  avoiding  of  uncer- 
tainty, the  mother  of  contention  and  confusion. 

9,  b.  And  here  it  is  to  be  observed  (that  I  may  speak 
once  for  all),  that  every  period  of  our  author  in  all  his  three 
books  containes  matter  of  excellent  learning,  necessarily  to 


ESTATES    IN    FEE    SIMPLE.  221 

be  collected  by  implication,  or  consequence.  For  example 
he  saith  here,  that  these  words  (his  heires)  make  an  estate 
of  inheritance  in  all  feoffments  and  grants.  He  expressing 
feoffments  and  grants  necessarily  implieth  that  this  rule  ex- 
tendeth  not, 

First,  to  last  wills  and  testaments;  for  thereby,  as  he  him- 
selfe  after  saith,  an  estate  of  inheritance  may  passe  without 
these  words  (his  heires).  As  if  a  man  devise  twenty  acres 
to  another,  and  that  he  shall  pay  to  his  executors  for  the 
same  ten  pound,  hereby  the  devisee  hath  a  fee  simple  by  the 
intent  of  the  devisor,  albeit  it  be  not  the  value  of  the  land. 
So  it  is  if  a  man  devise  lands  to  a  man  in  perpetuum,  or  to 
give  and  to  sell,  or  in  feodo  simplici,  or  to  him  and  to  his 
assigns  for  ever.  In  these  cases  a  fee  simple  doth  passe  by 
the  intent  of  the  devisor.  But  if  the  devise  be  to  a  man  and 
his  assigns  without  saying  (for  ever),  the  devisee  hath  but 
an  estate  for  life.  If  a  man  devise  land  to  a  man  et  san- 
guini  suo,  that  is  a  fee  simple,  but  if  it  be  semini  suo,  it  is  an 
estate  taile. 

Secondly,  that  it  extendeth  not  to  a  fine  sur  conusans  de 
droit  come  ceo  il  ad  de  son  done,  by  which  a  fee  also  may 
passe  without  this  word  (heires)  in  respect  of  the  height  of 
that  fine,  and  that  thereby  is  implyed  that  there  was  a 
precedent  gift  in  fee. 

Thirdly,  nor  to  certain  releases,  and  that  three  manner  of 
waies.  First,  when  an  estate  of  inheritance  passeth  and 
continueth ;  as  if  there  be  three  coparceners  or  joyntenants, 
and  one  of  them  release  to  the  other  two,  or  to  one  of  them 
generally  without  this  word  (heirs),  by  Littleton's  own 
opinion  they  have  a  fee  simple, ,  as  appeareth  hereafter.  2. 
By  release,  when  an  estate  of  inheritance  passeth  and  con- 
tinueth not,  but  is  extinguished ;  as  where  the  lord  releaseth 
to  the  tenant,  or  the  grantee  of  a  rent,  etc.,  release  to  the 
tenant  of  the  land  generally  all  his  right,  etc.,  hereby  the 
seigniory,  rent,  etc.,  are  extinguished  for  ever,  without  these 
words  (heires).  3.  When  a  bare  right  is  released,  as  when 
the  disseisee  release  to  the  disseisor  all  his  right,  he  need  not 


222   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

(saith  our  author  in  another  place)  speake  of  his  heires. 
But  of  all  these  and  the  like  cases,  more  shall  be  treated 
in  their  proper  places.  4.  Nor  to  a  recovery.  A.  seised  of 
land  suffereth  B.  to  recover  the  land  against  him  by  a  com- 
mon recovery,  where  the  judgment  is,  quod  praedictus  B., 
recuperet  versus  praed  A.  tenementa  praedicta  cum  pertin; 
yet  B.  recovereth  a  fee-simple  without  this  word  (heires)  ; 
for  regularly  every  recoveror  recovereth  a  fee  simple.  5. 
Nor  to  a  creation  of  nobilitie  by  writ,  for  when  a  man  is 
called  to  the  upper  house  of  Parliament  by  writ,  he  is  a 
baron  and  hath  inheritance  therein  without  the  word 
(heires).  .  .  . 

10,  a.  And  this  rule  of  our  author  extendeth  to  the 
passing  of  estates  of  inheritances  in  exchanges,  releases,  or 
confirmations  that  enure  by  way  of  enlargement  of  estates, 
warranties,  bargaine  and  sales  by  deed  indented  and  in- 
rolled,  and  the  like,  in  which  this  word  (heires)  is  also 
necessary ;  for  they  do  tantamount  to  a  feoffment  or  grant, 
or  stand  upon  the  same  reason  that  a  feoffment  or  grant 
doth;  for  like  reason  doth  make  like  law,  ubi  eadem  ratio, 
ibi  idem  jus.  And  this  is  to  be  observed  throughout  all 
these  three  books,  that  where  other  cases  fall  within  the 
same  reason,  our  author  doth  put  his  case  but  for  example ; 
for  so  our  author  himselfe  in  another  place1  explaneth  it, 
saying,  et  memorandum  que  en  touts  auters  (tiels)  cases, 
content  que  ne  sont  icy  expressment  moves  et  specifies,  si 
sont  en  semblable  reason  sont  en  semblable  ley. 

2  BL.  COM.,  107-109.  The  word  "heirs"  is  necessary  in 
the  grant  or  donation,  in  order  to  make  a  fee,  or  inheritance. 
For  if  land  be  given  to  a  man  for  ever,  or  to  him  and  his 
assigns  for  ever,  this  vests  in  him  but  an  estate  for  life. 
This  very  great  nicety  about  the  insertion  of  the  word 
"heirs,"  in  all  feoffments  and  grants,  in  order  to  vest  a  fee, 
is  plainly  a  relic  of  the  feodal  strictness ;  by  which  we  may 
remember  it  was  required  that  the  form  of  the  donation 

1  Sec.  301. 


ESTATES  IN  FEE  SIMPLE.  223 

should  be  punctually  pursued ;  or  that,  as  Cragg  expresses  it 
in  the  words  of  Baldus,  "donationes  sint  stricti  juris,  ne  quis 
plus  donasse  praesumatur  quam  in  donatione  expresserit." 
And  therefore,  as  the  personal  abilities  of  the  donee  were 
originally  supposed  to  be  the  only  inducements  to  the  gift, 
the  donee's  estate  in  the  land  extended  only  to  his  own  per- 
son, and  subsisted  no  longer  than  his  life ;  unless  the  donor, 
by  an  express  provision  in  the  grant,  gave  it  a  longer  con- 
tinuance, and  extended  it  also  to  his  heirs.  But  this  rule  is 
now  softened  by  many  exceptions. 

For,  i.  It  does  not  extend  to  devises  by  will;  in  which, 
as  they  were  introduced  at  the  time  when  the  feodal  rigour 
was  apace  wearing  out,  a  more  liberal  construction  is  al- 
lowed ;  and  therefore  by  a  devise  to  a  man  for  ever,  or  to 
one  and  his  assigns  for  ever,  or  to  one  in  fee-simple,  the 
devisee  hath  an  estate  of  inheritance ;  for  the  intention  of 
the  devisor  is  sufficiently  plain  from  the  words  of  perpetuity 
annexed,  though  he  hath  omitted  the  legal  words  of  inherit- 
ance. But  if  the  devise  be  to  a  man  and  his  assigns,  without 
annexing  words  of  perpetuity,  there  the  devisee  shall  take 
only  an  estate  for  life;  for  it  does  not  appear  that  the  de- 
visor intended  any  more.  2.  Neither  does  this  rule  extend 
to  fines  or  recoveries  considered  as  a  species  of  conveyance ; 
for  thereby  an  estate  in  fee  passes  by  act  and  operation  of 
law  without  the  word  "heirs,"  as  it  does  also,  for  particular 
reasons,  by  certain  other  methods  of  conveyance,  which 
have  relation  to  a  former  grant  or  estate,  wherein  the  word 
"heirs"  was  expressed.  3.  In  creations  of  nobility  by  writ, 
the  peer  so  created  hath  an  inheritance  in  his  title,  without 
expressing  the  word  "heirs;"  for  heirship  is  implied  in  the 
creation,  unless  it  be  otherwise  specially  provided ;  but  in 
creations  by  patent,  which  are  stricti  juris,  the  word  "heirs" 
must  be  inserted,  otherwise  there  is  no  inheritance.  4.  In 
grants  of  lands  to  sole  corporations  and  their  successors,  the 
word  "successors"  supplies  the  place  of  "heirs ;"  for  as  heirs 
take  from  the  ancestor,  so  doth  the  successor  from  the  pred- 
ecessor. Nay,  in  a  grant  to  a  bishop  or  other  sole  spiritual 


224   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

corporation,  in  frankalmoign,  the  word  "frankalmoign" 
supplies  the  place  of  "successors,"  (as  the  word  "succes- 
sors" supplies  the  place  of  "heirs,")  ex  vi  termini;  and  in  all 
these  cases  a  fee-simple  vests  in  such  sole  corporation.  But, 
in  a  grant  of  lands  to  a  corporation  aggregate,  the  word 
"successors"  is  not  necessary,  though  usually  inserted :  for, 
albeit  such  simple  grant  be  strictly  only  an  estate  for  life, 
yet,  as  that  corporation  never  dies,  such  estate  for  life  is 
perpetual,  or  equivalent  to  a  fee-simple,  and  therefore  the 
law  allows  it  to  be  one.  5.  Lastly,  in  the  case  of  the 
king,  a  fee-simple  will  vest  in  him,  without  the  word  "heirs" 
or  "successors"  in  the  grant ;  partly  from  prerogative  royal, 
and  partly  from  a  reason  similar  to  the  last,  because  the 
king  in  judgment  of  law  never  dies.  But  the  general  rule 
is,  that  the  word  "heirs"  is  necessary  to  create  an  estate  of 
inheritance. 

LEAKE,  LAND  LAW,  192.  By  the  Wills  Act,  i  Viet.,  c. 
26,  s.  28,  which  does  not  extend  to  any  will  made  before  ist 
January,  1838,  it  is  enacted  "that  where  any  real  estate  shall 
be  devised  to  any  person  without  any  words  of  limitation, 
such  devise  shall  be  construed  to  pass  the  fee  simple,  or 
other  the  whole  estate  or  interest  which  the  testator  had 
power  to  dispose  of  by  will  in  such  real  estate,  unless  a  con- 
trary intention  appear  by  the  will." 

4  KENT,  5-8.  The  word  heirs  is,  at  common  law,  neces- 
sary to  be  used,  if  the  estate  is  to  be  created  by  deed.  The 
limitation  to  the  heirs  must  be  made  in  direct  terms,  or  by 
immediate  reference,  and  no  substituted  words  of  per- 
petuity, except  in  special  cases,  will  be  allowed  to  supply 
their  place,  or  make  an  estate  of  inheritance  in  feoffments 
and  grants.  The  location  of  the  word  in  any  particular  part 
of  the  grant  is  not  essential;  for  a  grant  of  a  rent  to  A., 
and  that  he  and  his  heirs  should  distrain  for  it,  will  pass  a 
fee.  The  general  rule  is  applicable  to  all  conveyances  gov- 
erned by  the  rules  of  the  common  law ;  for  though  prior  to 


ESTATES    IN    FEE    SIMPLE.  225 

the  Statute  of  Uses,  the  fee,  in  the  view  of  a  court  of  chan- 
cery, passed  by  reason  of  the  consideration,  in  a  bargain  and 
sale,  or  covenant  to  stand  seised  to  uses,  without  any  ex- 
press limitation  to  the  heirs ;  yet,  when  uses  were  by  statute 
transferred  into  possession,  and  became  legal  estates,  they 
were  subjected  to  the  scrupulous  and  technical  rules  of  the 
courts  of  the  law.  The  example  at  law  was  followed  by  the 
courts  of  equity,  and  the  same  legal  construction  applied 
by  them  to  a  conveyance  to  uses.  If  a  man  purchases  lands 
to  himself  for  ever,  or  to  him  and  his  assigns  for  ever,  he 
takes  but  an  estate. for  life.  Though  the  intent  of  the  parties 
be  ever  so  clearly  expressed  in  the  deed,  a  fee  cannot  pass 
without  the  word  heirs.  The  rule  was  founded  originally 
on  principles  of  feudal  policy,  which  no  longer  exist,  and  it 
has  now  become  entirely  technical.  A  feudal  grant  was, 
stricti  juris,  made  a  consideration  of  the  personal  abilities 
of  the  feudatory,  and  his  competency  to  render  military  ser- 
vice; and  it  was  consequently  confined  to  the  life  of  the 
donee,  unless  there  was  an  express  provision  that  it  should 
go  to  his  heirs. 

But  the  rule  has  for  a  long  time  been  controlled  by  a  more 
liberal  policy,  and  it  is  counteracted  in  practice  by  other 
rules,  equally  artificial  in  their  nature,  and  technical  in  their 
application.  .  .  .  It  is  likewise  understood  that  a  court 
of  equity  will  supply  the  omission  of  words  of  inheritance ; 
and  in  contracts  to  convey,  it  will  sustain  the  right  of  the 
party  to  call  for  a  conveyance  in  fee,  when  it  appears  to  have 
been  the  intention  of  the  contract  to  convey  a  fee. 

Thus  stands  the  law  of  the  land,  without  the  aid  of  legis- 
lative provision.  But  in  this  country,  the  statute  law  of 
some  of  the  States  has  abolished  the  inflexible  rule  of  the 
common  law,  which  had  long  survived  the  reason  of  its  in- 
troduction, and  has  rendered  the  insertion  of  the  word  heirs 
no  longer  necessary.  In  Virginia,  Kentucky,  Mississippi, 
Missouri,  Alabama,  and  New  York,  the  word  heirs,  or  other 
words  of  inheritance,  are  no  longer  requisite,  to  create  or 
convey  an  estate  in  fee;  and  every  grant  or  devise  of  real 


226   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

estate  made  subsequent  to  the  statute,  passes  all  the  interest 
of  the  grantor  or  testator,  unless  the  intent  to  pass  a  less 
estate  or  interest  appears  in  express  terms  or  by  necessary 
implication.  The  statute  of  New  York  also  adds,  for 
greater  caution,  a  declaratory  provision,  that  in  the  con- 
struction of  every  instrument  creating  or  conveying  any 
estate  or  interest  in  land,  it  shall  be  the  duty  of  the  courts 
to  carry  into  effect  the  intention  of  the  parties,  so  far  as  such 
intention  can  be  collected  from  the  whole  instrument,  and  is 
consistent  with  the  rules  of  law.  Some  of  the  other  States, 
as  New  Jersey,  North  Carolina,  and  Tennessee,  have  con- 
fined the  provision  to  wills,  and  left  deeds  to  stand  upon  the 
settled  rules  and  construction  of  the  common  law.  They 
have  declared  by  statute  that  a  devise  of  lands  shall  be  con- 
strued to  convey  a  fee  simple,  unless  it  appears,  by  express 
words  or  manifest  intent,  that  a  lesser  estate  was  intended. 

30  N.  J.  LAW  REP.,  505.  To  adopt  as  a  settled  rule  of  in- 
terpretation that  deeds  are  to  be  construed  like  wills,  accord- 
ing to  the  presumed  intent  of  the  parties  making  them,  to  be 
deduced  from  an  examination  of  the  whole  instrument, 
would  be-- dangerous,  and,  in  my  judgment,  in  the  last  de- 
gree inexpedient.  It  is  far  better  to  adhere  to  the  rigid  rules 
established  and  firmly  settled  for  centuries,  than  to  open  so 
wide  a  door  for  litigation,  and  render  uncertain  the  titles  to 
lands.  The  experience  of  courts  in  the  construction  of  wills, 
the  difficulty  in  getting  at  the  real  intent  of  the  party,  where 
•imperfectly  expressed,  or  where  he  had  none;  the  doubt  which 
always  exists  in  such  cases,  whether  the  court  has  spelt  out 
what  the  party  meant,  all  Combine  to  show  the  importance 
of  adhering  to  the  rule,  that  the  grantor  of  the  deed  must 
express  his  intent  by  the  use  of  the  necessary  words  of  con- 
veyance, as  they  have  been  settled  long  ago  by  judicial  de- 
cision and  the  writings  of  the  sages  of  the  law.  Upon  this 
point  it  is  not  safe  to  yield  an  inch ;  if  that  is  done,  the  rule 
is  effectually  broken  down.  Where  shall  we  stop  if  we  start 
here? 


ESTATES    IN    FEE    SIMPLE. 

Neither  the  researches  of  the  learned  judge  who  delivered 
the  opinion  of  the  Supreme  Court,  nor  those  of  the  very  dili- 
gent counsel  who  argued  the  case  here,  have  produced  a 
case  decided  in  England  or  in  any  State  of  this  Union  abid- 
ing by  the  common  law,  where  in  a  conveyance  by  deed  the 
word  children  has  been  held  to  be  equivalent  to  heirs.  That 
this  has  been  determined  in  regard  to  wills  is  freely  con- 
ceded, but  that  does  not  answer  the  requisition.  The  reason- 
ing of  the  Supreme  Court  is,  to  my  mind,  entirely  unsatisfac- 
tory. In  the  administration  of  the  law  of  real  estate,  I  pre- 
fer to  stand  super  antiquas  vias,  stare  decisis;  to  maintain 
the  great  rules  of  property,  to  adopt  no  new  dogma,  how- 
ever convenient  it  may  seem  to  be.  The  refined  course  of 
reasoning  adopted  in  the  face  of  so  great  a  weight  of  au- 
thority rather  shows  what  the  law  might  have  been  than 
what  it  is.  I  am  utterly  unprepared  to  overturn  the  common 
law,  as  understood  by  Littleton,  Coke,  Shepherd,  Cruise, 
Blackstone,  Kent,  and  all  the  judges  who  have  administered 
it  for  three  centuries,  and  to  adopt  the  dogma,  that  intention, 
not  expression,  is  hereafter  to  be  the  guide  in  the  construc- 
tion of  deeds.  That  would  be  as  unwarrantable  as  dangerous. 
— Per  Whelpley,  J.,  in  Adams  v.  Ross  (1860). 

54  N.  H.  REP.,  242.  It  is  said  to  be  a  rule  of  the  common 
law  that  without  the  word  "heirs"  a  fee  simple  in  land  can- 
not pass  by  deed ;  and  that  this  rule  is  so  absolute  and  un- 
yielding, that,  no  matter  how  clearly  the  intention  of  the 
grantor  to  convey  a  fee  may  be  stated  in  the  deed,  such  in- 
tention can  be  of  no  avail  without  that  word.  Washb,  R.  P., 
Bk.  L,  Chap.  III.,  sec.  53,  and  authorities  in  notes.  A  priori 
we  should  expect  to  find  a  rule  which  in  its  practical  appli- 
cation brings  about  results  so  anomalous  and  absurd,  but 
which  is,  nevertheless,  enforced  with  such  remorseless  rigor 
by  the  courts,  upheld  by  reasons  very  plain  and  very  impera- 
tive. Naturally  we  should  also  expect  that  the  books,  which 
are  full  of  cases  where  its  application  has  produced  palpable 
injustice,  more  or  less  aggravated  according  to  circum- 


228   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

stances,  would  also  be  filled  with  strong  and  conclusive 
reasons  in  its  support.  On  the  contrary,  what  does  appear? 
I  venture  to  affirm  that  since  the  revolution  by  which  the 
house  of  Stuart  was  finally  excluded  from  the  British 
throne,  when  most  of  the  shackles  which  feudalism  had 
riveted  upon  the  tenure  of  lands  throughout  the  kingdom 
were  removed,  not  a  reason,  nor  the  semblance  of  a  reason, 
growing  out  of  the  condition  and  wants  of  society,  the  prog- 
ress of  civilization,  the  exigencies  of  trade,  or  the  analogies 
of  the  law  can  be  found  in  its  support  in  any  country  or 
State  where  the  common  law  has  been  used.  .  .  . 

To  comprehend  fully  the  reasons  which  gave  birth  to  this 
rule,  we  ought  to  recall  not  only  the  nature  of  the  feudal  ten- 
ures of  land  in  England,  but  the  history  of  the  origin  and 
development  of  the  system  itself,  which  before  the  close  of 
the  eleventh  century  had  succeeded,  mainly  by  conquest  and 
force,  in  vesting  the  ultimate  ownership  of  nearly  all  the 
lands  in  England,  as  well  as  on  the  continent  of  Europe,  in 
the  feudal  lords,  and  parcelling  them  out  among  a  few 
military  chieftains  or  leaders  of  bands  of  predatory  barba- 
rians. .  .  . 

These  extracts  are  enough  to  show  that  the  word  "  heirs," 
when  first  introduced  into  charters  and  feoffments,  was  a 
word  of  very  great  importance.  It  enlarged  the  right  of  the 
vassal  from  one  held  either  at  the  will  of  the  lord,  or  for  his 
own  life,  to  a  permanent  and  hereditary  interest.  It  sig- 
nified an  undertaking  by  the  lord  that  he  would  accept  the 
heir  as  his  vassal,  and  that  all  the  rights  and  obligations 
growing  out  of  that  relation  should  be  extended  to  him.  It 
was,  in  effect,  simply  a  stipulation  for  a  renewal  of  the  lease 
upon  the  same  terms  with  the  heir  of  the  first  lessee.  They 
also  show  to  some  extent  the  nature  of  the  institutions  and 
conditions  of  society  in  which  the  rule  we  are  speaking  of 
originated  and  to  which  it  was  applicable,  and  strong- 
ly present  the  contrast  between  those  institutions  and  our 
own.  .  .  . 

When  the  fetters  which  feudalism  had  fastened  upon  the 


ESTATES    IN    FEE    SIMPLE.  229 

tenure  of  lands  in  England  fell  off,  every  reason  on  which 
this  rule  had  rested  fell  with  them.  Why  should  the  rule 
itself  be  retained?  Lord  Coke  says:  "Cessante  ratione 
legis,  cessat  ipsa  lex."  Coke,  Litt.,  70,  b.  And  that  has 
come  to  be — indeed,  it  was  then — one  of  the  most  familiar 
maxims  of  the  law.  .  .  . 

In  the  nature  of  things  the  word  [heirs]  is  no  more  neces- 
sary to  the  valid  conveyance  of  land  than  to  the  valid  con- 
veyance of  a  horse.  Its  use  was  necessary  in  the  scheme  of 
a  semi-barbarous  institution,  a  vast  engine  of  slavery  and 
oppression,  an  instrument  of  violence  and  disorder,  which 
had  no  better  security  for  its  continued  existence  than  su- 
periority of  brute  force,  and  which  was  swept  away  upon 
the  dawn  of  a  better  civilization  more  than  five  hundred 
years  ago.  Why  is  its  use  still  required  in  one  class  of  in- 
struments and  not  in  the  other,  when  both  have  the  same 
object  in  view,  namely,  the  conveyance  of  land? 

I  have  not  found  any  answer  to  this  inquiry.  The  legal 
signification  and  effect  of  the  word  as  used  in  our  deeds  of 
bargain  and  sale  are  purely  technical.  Strictly  speaking, 
there  is  no  one  in  existence  at  the  time  of  the  grant  to 
answer  the  description.  Nemo  est  haeres  viventis.  Those 
who  may  become  the  heirs  of  the  grantee  take  not  the  slight- 
est present  interest  by  virtue  of  the  word.  The  conveyance 
vests  the  absolute  and  unlimited  ownership  in  the  grantee; 
the  word  imposes  no  restraint  on  his  power  of  alienation. 
Nevertheless  \\  has  a  settled  and  well-understood  meaning 
as  thus  used,  and,  as  a  legal  term,  is  very  convenient  and 
useful  to  show  that  the  estate  granted  is  a  fee.  It  could  not 
now  be  safely  omitted  without  using  some  other  forrn  of  ex- 
pression showing  with  legal  accuracy  the  intention  and  con- 
tract of  the  parties. 

Of  course  it  will  not  be  omitted  by  any  conveyancer  or 
other  person  who  knows  the  significance  it  has  acquired. 
But  when  a  case  arises  where  the  intention  of  the  grantor  to* 
convey  a  fee-simple  is  clearly  shown  by  other  words  in  the 
deed,  we  think  the  court  have  no  power  to  say  a  fee  shall 


23O   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

not  pass  because  he  has  not,  in  addition,  inserted  this 
technical  word,  using  it  in  a  sense  entirely  distinct  and  dif- 
ferent from  its  usual  and  common  import.  Our  conclusion 
is  that  the  rule,  which  would  defeat  the  obvious  intention 
and  destroy  the  plainly  expressed  contract  of  the  parties  in 
the  present  case,  is  not  adapted  to  our  institutions  or  the 
condition  of  things  in  this  State;  that  it  never  became  part 
of  the  law  of  the  State,  and,  therefore,  that  this  instrument 
conveys  to  the  lessees  a  perpetual  right  to  take  and  use  the 
water  upon  the  terms  and  conditions  specified,  which  right 
may  pass  to  their  heirs  and  assigns  as  a  fee. — Per  Ladd,  J., 
in  Cole  v.  Lake  Co.  (1874). 

FINCH,  CASES,  PROP.  IN  LAND,  489.  It  would  seem  that 
technical  words  of  limitation  are  still  required  to  pass  a  fee 
in  Maine,  Vermont,  Massachusetts,  Rhode  Island,  Connecti- 
cut, Pennsylvania,  New  Jersey,  Delaware,  South  Carolina, 
Florida,  Ohio  and  Wyoming. — Finch's  note. 

N.  Y.  REAL  PROP.  LAW,  §  205.  Every  instrument  creat- 
ing, transferring,  assigning,  or  surrendering  an  estate 
or  interest  in  real  property  must  be  construed  according  to 
the  intent  of  the  parties,  so  far  as  such  intent  can  be  gath- 
ered from  the  whole  instrument,  and  is  consistent  with  the 
rules  of  law. 

§210.  A  grant  or  devise  of  real  property  passes  all  the 
estate  or  interest  of  the  grantor  or  testator  unless  the  intent 
to  pass  a  less  estate  or  interest  appears  by  the  express  terms 
-of  such  grant  or  devise  or  by  necessary  implication  there- 
irom. 


CHAPTER  III. 

ESTATES  IN  FEE  TAIL, 
(a)  Conditional  Fee. 

BRACTON,  17.  Likewise  as  the  class  of  heirs  may  be  en- 
larged, ...  so  can  it  be  restricted  by  the  limitations 
expressed  in  the  gift,  and  in  that  case  the  heirs 
general  do  not  succeed.  For  the  limitations  fix  the  legal 
effect  of  the  gift,  and  the  limitations  of  the  gift  must  be 
abided  by  contrary  to  common  right,  and  contrary  to  the 
general  law,  because  such  limitations,  when  agreed  on,  over- 
ride the  general  law,  as  if  the  words  are,  "I  give  such  a  one 
so  much  land  with  the  appurtenances  in  N.  to  have  and  to 
hold  to  him  and  his  heirs  whom  he  may  have  begotten  of 
his  body  by  his  wedded  wife."  ...  In  which  case, 
since  a  restricted  class  of  heirs  is  mentioned  in  the  gift,  it 
may  be  seen  that  the  descent  is  only  to  the  common  heirs  of 
husband  and  wife  according  to  the  limitations  expressed  in 
the  gift,  all  other  heirs  of  the  husband  being  altogether  ex- 
cluded from  the  succession,  because  such  was  the  intention 
of  the  donor.  Hence  it  is  that  if  heirs  of  this  kind  have 
been  begotten,  they  alone  are  called  to  the  succession,  and 
if  one  who  is  enfeoffed  in  this  manner  has  proceeded  to  en- 
feoff  any  one  else  of  the  land,  this  feoffment  holds  good,  and 
the  heirs  of  the  feoffer  are  bound  to  warranty,  since  they 
can  claim  nothing  except  by  succession  and  descent  from 
their  ancestors,  although  some  think  that  the  heirs  them- 
selves have  been  enfeoffed  together  with  their  parents, 
which  is  not  true.  But  if  a  feoffee  to  himself  and  the  heirs  of 
his  body  have  no  such  heirs,  the  land  will  revert  to  the  donor 
by  an  implied  condition,  even  if  there  be  no  mention  in  the 


232   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

deed  of  gift  of  such  reversion,  or  if  there  be  such  express 
mention;  and  this  will  be  the  case,  too,  if  heirs  have  at  any 
time  come  into  existence  and  have  failed.  But  in  the  first 
case,  where  no  heir  has  come  into  existence,  the  donee  will 
always  hold  the  property  given  as  an  estate  for  life  and  not 
as  a  fee.  Also  in  the  second  case,  until  an  heir  has  come 
intd  existence  the  estate  is  an  estate  for  life;  when,  how- 
ever, an  heir  has  come  into  existence  the  life  estate  passes 
into  a  fee,  and  when  there  ceases  to  be  any  heir  the  fee  also 
comes  to  an  end  and  passes  into  an  estate  for  life,  and  as  a 
consequence  such  a  gift  will  never  support  a  claim  of  dower 
unless  it  be  an  absolute  gift,  because  it  is  never  the  practice. 
to  make  express  mention  of  the  reversion.  .  .  . 

PLOWD.,  245.  And  at  the  common  Law  there  was  no 
Estate  of  Inheritance  but  what  was  Fee-simple.  But  these 
Estates  in  Fee-simple  were  of  two  Sorts,  the  one  absolute, 
and  the  other  conditional,  as  hath  been  said.  And  the  Fee- 
simple  conditional  was,  where  Land  was  given  to  a  Man 
[and]  to  the  Heirs  of  his  Body  begotten, and  herein  the  Abuse 
was  after  Issue  had  rather  than  before  Issue  had.  For  before 
Issue  had,  if  he  had  aliened,  this  should  not  have  bound  the 
Issues  had  afterwards,  nor  the  Donor  if  there  had  been  no 
Issue,  for  until  Issue  had  the  Donee  had  no  Power  to  alien, 
though  he  had  after  Issue.  For  when  the  Gift  was  to  one 
and  to  the  Heirs  of  his  Body,  they  took  it  that  he  could  not 
lawfully  alien  until  he  had  such  Heirs,  and  that  if  he  did 
alien,  the  Donor  (although  he  could  not  enter  presently) 
after  the  Death  of  the  Donee,  if  he  had  no  Issue,  might  have 
a  Formedon  in  Reverter.  For  the  Gift  being  to  one  and  to 
the  Heirs  of  his  Body,  they  adjudged  it  not  to  be  a  full  Fee- 
simple  until  he  had  Heirs  of  his  Body,  for  when  it  was 
incertain  whether  he  should  have  an  Heir  of  his  Body  or 
not^they  did  not  take  him  to  have  a  full  inheritance.  .  .  .• 
But  after  Issue  had  such  Donee  at  the  common  Law  had 
Power  to  alien,  and  thereby  to  bar  the  Issues  and  the  Donor, 
for  by  having  Issue  the  Condition  was  performed,  and  his 


ESTATES    IN    FEE    TAIL.  233 

Inheritance  was  made  more  full. — Per  Brown,  J.,  in  Willion 
v.  Berkley  (1562). 

Co.  LIT.,  19,  a.  Before  which  statute  of  Donis  Condition- 
alibus,  if  land  had  beene  given  to  a  man,  and  to  the  heires 
males  of  his  body,  the  having  of  an  issue  female  had  beene 
no  performance  of  the  condition ;  but  if  he  had  issue  male, 
and  dyed,  and  the  issue  male  had  inherited,  yet  he  had  not 
had  a  fee  simple  absolute;  for  if  he  had  died  without  issue 
male,  the  donor  should  have  entered  as  in  his  reverter.  By 
having  of  issue,  the  condition  was  performed  for  three  pur- 
poses :  First,  to  alien ;  Secondly,  to  forfeit ;  Thirdly,  to 
charge  with  rent,  common,  or  the  like.  But  the  course  of 
descent  was  not  altered  by  having  issue;  for  if  the  donee 
had  issue  and  died,  and  the  land  had  descended  to  his  issue, 
yet  if  that  issue  had  dyed  (without  any  alienation  made) 
without  issue,  his  collaterall  heire  should  not  have  inherited, 
because  he  was  not  within  the  forme  of  the  gift,  viz.,  heire 
of  the  body  of  the  donee.  .  .  . 

If  donee  in  taile  at  the  common  law  had  aliened  before 
any  issue  had,  and  after  had  issue,  this  alienation  had  barred 
the  issue,  because  he  claimed  a  fee  simple;  yet  if  that  issue 
had  died  without  issue,  the  donor  might  re-enter,  for  that 
he  aliened  before  any  issue,  at  what  time  he  had  no  power 
to  alien  to  barre  the  possibilitie  of  the  donor. 

DIGBY,  HIST.  REAL  PROP.,  Ch.  IV.,  §  3.  The  technical 
expression,  "conditional  gift,"  has  been  already  explained 
in  commenting  on  the  passage  of  Bracton  given  above.  It 
has  been  already  seen  that  in  Bracton's  time  a  gift  accom- 
panied by  words  of  procreation,  as,  for  instance,  to  a  man 
and  the  heirs  of  his  body,  or  to  a  man  and  his  wife  and  the 
heirs  of  their  bodies,  and  similar  expressions,  was  held  to 
be  an  estate  of  inheritance  conditional  on  issue  being  born ; 
until  this  event  happened  the  interest  was  in  effect  merely 
an  estate  for  life.  It  was,  strictly  speaking,  an  estate  de- 
scendible to  the  class  of  heirs  mentioned  in  the  gift,  if  such 


234   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

there  should  be.  If,  therefore,  a  donee,  holding  to  him- 
self and  the  heirs  of  his  body,  made  an  alienation  ,of  his 
land,  his  heirs,  Bracton  tells  us,  would  be  bound  to  war- 
ranty, that  is,  to  uphold  the  gift,  inasmuch  as  they  could 
only  claim  by  descent  from  their  ancestor  and  take  nothing 
by  the  original  gift.  These  estates,  therefore,  upon  the  hap- 
pening of  the  condition,  differed  from  ordinary  estates  in 
fee  simple  only  in  the  restricted  character  of  their  devolu- 
tion to  the  class  of  heirs  named  in  the  gift.  So  soon  as  the 
condition  was  performed  by  the  birth  of  issue,  the  tenant 
could  alienate  and  convey  an  estate  in  fee  simple.  So  if  the 
donee  of  such  an  estate  committed  treason,  the  fee  simple 
would,  after  birth  of  issue,  be  forfeited.  This  would  not 
have  been  the  case  if  the  descent  had  been  secured  by  virtue 
of  the  form  of  the  gift.  The  power  of  alienating  the  whole 
would  as  a  matter  of  course  involve  the  power  of  alienating 
particular  rights  over  the  land,  such  as  granting  a  rent  pay- 
able out  of  it,  or  charging  it  with  debts  so  as  to  bind  succes- 
sors in  title.  If,  however,  the  land  was  not  alienated,  it 
would  descend  not  according  to  the  ordinary  rules  affecting 
inheritances,  but  according  to  the  mode  expressed  in  the  gift. 
It  can  hardly  be  doubted  that  this  strained  construction  was 
put  upon  such  gifts  in  order  to  favour  the  practice  of  aliena- 
tion, which  was  dear  to  the  common  lawyers  and  to  the 
great  mass  of  landowners,  though  abhorrent  to  the  domini 
capitales. 

It  was  to  restrain  the  practice  of  alienating  these  condi- 
tional estates,  and  so  at  once  to  prevent  the  lord  losing  the 
benefit  of  escheat  upon  failure  of  the  descendants  of  his 
feoffee,  and  to  protect  the  interests  of  the  heir,  that  the 
Statute  De  Donis  Conditionalibus  was  passed.  In  order  to 
effect  this  object  it  was  provided  that  such  an  alienation 
should  not  defeat  the  devolution  of  the  estate  to  the  heir, 
but  that  in  the  event  of  the  tenant  of  a  conditional  estate 
alienating,  the  heir  on  the  decease  of  his  ancestor  might  re- 
cover the  estate  from  the  feoffee,  or  any  person  claiming 
under  him.  It  was  further  provided  that  where  the  tenant 


ESTATES    IN    FEE    TAIL.  235 

had  made  a  feoffment  in  fee,  having  had  issue  born,  who 
had  subsequently  died,  the  original  donor  (or  lord)  might 
recover  the  land  from  the  feoffee  by  the  same  form  of  rem- 
edy as  he  might  have  employed  before  the  Statute  to  recover 
land  which  his  tenant  had  conveyed  away  for  an  estate  in 
fee  without  having  had  issue  born. 

STAT.  WESTM.  II.  (13  EDW.  I.,  1285),  c.  i.  De  Donis 
Conditionalibus. — First,  concerning  lands  that  many  times 
are  given  upon  condition,  that  is,  to  wit,  where  any 
giveth  his  land  to  any  man  and  his  wife,  and  to  the  heirs 
begotten  of  the  bodies  of  the  same  man  and  his  wife,  with 
such  condition  expressed  that  if  the  same  man  and  his  wife 
die  without  heir  of  their  bodies  between  them  begotten,  the 
land  so  given  shall  revert  to  the  giver  or  his  heir;  in  case 
also  where  one  giveth  lands  in  free  marriage,  which  gift  hath 
a  condition  annexed,  though  it  be  not  expressed  in  the  deed 
of  gift,  which  is  this,  that  if  the  husband  and  wife  die  with- 
out heir  of  their  bodies  begotten,  the  land  so  given  shall  re- 
vert to  the  giver  or  his  heir ;  in  case  also  where  one  giveth 
land  to  another  and  the  heirs  of  his  body  issuing,  it  seemed 
very  hard  and  yet  seemeth  to  the  givers  and  their  heirs,  that 
their  will  being  expressed  in  the  gift  was  not  heretofore  nor 
yet  is  observed.  In  all  the  cases  aforesaid  after  issue  begot- 
ten and  born  between  them,  to  whom  the  lands  were  given 
under  such  condition,  heretofore  such  feoffees  had  power  to 
aliene  the  land  so  given,  and  to  disinherit  their  issue  of  the 
land,  contrary  to  the  minds  of  the  givers,  and  contrary  to 
the  form  expressed  in  the  gift ;  and  further,  when  the  issue 
of  such  feoffee  is  failing,  the  land  so  given  ought  to  return 
to  the  giver  or  his  heir  by  form  of  gift  expressed  in  the 
deed,  though  the  issue,  if  any  were,  had  died;  yet  by  the 
deed  and  feoffment  of  them,  to  whom  land  was  so  given 
upon  condition,  the  donors  have  heretofore  been  barred  of 
their  reversion  of  the  same  tenements  which  was  directly  re- 
pugnant to  the  form  of  the  gift :  wherefore  our  lord  the 
Ving,  perceiving  how  necessary  and  expedient  it  should  be 


236   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

to  provide  remedy  in  the  aforesaid  cases,  hath  ordained, 
that  the  will  of  the  giver  according  to  the  form  in  the  deed 
of  gift  manifestly  expressed  shall  be  from  henceforth  ob- 
served, so  that  they  to  whom  the  land  was  given  under  such 
condition  shall  have  no  power  to  aliene  the  land  so  given, 
but  that  it  shall  remain  unto  the  issue  of  them  to  whom  it 
was  given  after  their  death,  or  shall  revert  unto  the  giver  or 
his  heirs  if  issue  fail,  either  by  reason  that  there  is  no  issue 
at  all,  or  if  any  issue  be,  it  fail  by  death,  the  heir  of  such 
issue  failing.  Neither  shall  the  second  husband  of  any  such 
woman  from  henceforth  have  anything  in  the  land  so  given 
upon  condition  after  the  death  of  his  wife,  by  the  law  of 
England,  nor  the  issue  of  the  second  husband  and  wife  shall 
succeed  in  the  inheritance,  but  immediately  after  the  death 
of  the  husband  and  wife,  to  whom  the  land  was  so  given, 
it  shall  come  to  their  issue  or  return  unto  the  giver  or  his 
heir  as  before  is  said.  .  .  .  And  it  is  to  wit  that  this 
statute  shall  hold  place  touching  alienation  of  land  contrary 
to  the  form  of  gift  hereafter  to  be  made,  and  shall  not  extend 
to  gifts  made  before.  And  if  a  fine  be  levied  hereafter  upon 
such  lands  it  shall  be  void  in  the  law,  neither  shall  the  heirs 
or  such,  as  the  reversion  belongeth  unto,  though  they  be  of 
full  age,  within  England,  and  out  of  prison,  need  to  make 
their  claim. 

DIGBY,  HIST.  REAL  PROP.,  Ch.  IV.,  §  3.  The  effect  of 
this  Statute  was  to  create  a  new  species  of  estates  of  inher- 
itance, which,  except  under  certain  special  circumstances, 
could  not  be  alienated  so  as  to  defeat  the  expectant  interest 
of  the  issue  specified  in  the  gift,  or  postpone  the  reversion 
of  the  lord.  There  was,  it  is  true,  no  direct  provision  re- 
straining the  grant  in  fee  simple  of  such  estates.  No  for- 
feiture or  other  immediate  penalty  would  be  incurred  either 
by  feoffor  or  feoffee.  But  inasmuch  as  the  feoffor  could 
only  give  a  title  valid  against  himself  and  not  as  against  his 
issue  or  his  lord  after  his  own  decease,  the  fee  simple  which 
he  would  convey  to  the  feoffee  would  be  insecure  and  pre- 


ESTATES   IN    FEE    TAIL.  237 

carious,  and  liable  to  be  defeated  by  the  issue  of  the  feoffor, 
or  after  failure  of  the  issue,  by  the  lord  or  original  donor. 
An  estate  in  fee  which  was  thus  liable  to  be  defeated  was 
called  in  later  times  a  base  fee. 

The  provision  of  the  Statute  that  the  will  of  the  donor  as 
expressed  in  the  charter  should  for  the  future  be  observed 
was  held  by  the  tribunals  to  have  the  following  interpreta- 
tion :  Wherever  lands  were  granted  by  words  which  before 
the  Statute  would  have  created  a  conditional  gift  of  one  of 
the  kind  specified  in  the  Statute,  such  a  gift  would  now 
pass  an  estate  of  less  extent  than  a  fee  simple.  Thus,  sup- 
pose A.,  tenant  in  fee  simple,  made  a  grant  to  B.  and  the 
heirs  male  of  his  body.  This  limitation,  which  before  the 
Statute  would  have  been  a  fee  simple  conditional  on  B.  hav- 
ing a  son  born,  was  now  held  to  convey  a  special  kind  of 
estate  of  inheritance,  namely  an  estate  descendible  only  to 
heirs  male.  This  was  considered  to  be  a  smaller  estate  than 
a  fee  simple,  which  was  capable  of  descending  to  heirs  gen- 
eral, i.e.,  collateral  as  well  as  lineal.  This  secondary  species 
of  fee  has  ever  since  this  Statute  been  designated  an  estate 
tail,  feudwn  talliatum,  being  a  portion  of  an  estate  taille — 
cut  off — from  the  fee.  Hence  it  came  to  be  established  that 
when  A.,  tenant  in  fee  simple,  had  made  the  grant  above 
mentioned  he  had  not  granted  away  all  that  he  had  to  grant, 
some  interest  or  estate  was  left  in  him  still,  the  fee  simple 
in  fact  was  not  gone;  but  inasmuch  as  the  right  of  present 
enjoyment  had  been  parted  with  for  an  estate  which  would 
last  as  long  as  B.  and  his  male  line  continued,  the  fee  simple 
was  what  was  called  an  estate  in  reversion,  as  opposed  to 
one  in  possession.  B.'s  estate  was  called  an  estate  in  fee 
tail,  an  estate  cut  off  from  the  larger  estate ;  and  in  techni- 
cal language  the  effect  of  the  above  grant  would  be,  that  B. 
would  have  an  estate  in  fee  tail  in  possession,  A.  would  have 
an  estate  in  fee  simple  in  reversion  expectant  upon  the  de- 
termination of  the  estate  tail.  The  difference  between  an 
estate  in  reversion  and  a  mere  possibility  should  be  noticed. 
After  the  Statute,  and  the  judicial  interpretation  of  it  above 


238   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

explained,  A.  would  have  an  estate  or  definite  interest  known 
to  the  law,  which  he  could  if  he  pleased  convey  by  the 
proper  mode  and  vest  in  another  person.  Before  the 
Statute  he  would  merely  have  had  the  possibility  or  chance 
of  the  fee  simple  escheating  to  him  on  failure  of  B.'s  male 
issue;  and  this  is  not  a  present  disposable  right  known  to 
the  law,  but  is  merely  a  possibility  of  obtaining  such  a  right. 
In  consequence  of  the  recognition  of  this  new  estate  or  in- 
terest in  lands — the  estate  tail — it  became  possible  to  create 
interests  in  lands  of  a  much  more  complicated  character 
than  before.  When  a  person  had  granted  away  the  fee  sim- 
ple he  had  disposed  of  all  that  he  had  to  grant,  and  could 
make  no  further  valid  disposition  of  his  property.  But  now 
that  an  interest  was  recognized  intermediate  between  the 
estate  for  life  and  the  estate  in  fee  simple,  it  became  possible 
to  grant  lands  as  follows — to  A.  for  life,  and  after  the  ex- 
piration of  that  interest  (or,  more  shortly,  remainder)  to  B. 
and  the  heirs  of  his  body,  remainder  to  C.  and  his  heirs. 
Here  the  ultimate  gift  to  C.,  though  passing  to  him  at  once 
an  estate,  would  be  merely  an  estate  in  expectancy,  that  is, 
the  enjoyment  of  it  would  be  postponed,  not  only  till  A.'s 
death,  but  also  till  after  the  failure  of  B.'s  lineal  descend- 
ants. 

(b)  Nature  of  Fee  Tail. 

\ 

PLOWD.,  251.  And  where  an  Estate  to  one  and  to  the 
Heirs  of  his  Body  was  a  Fee  simple  before  the  Statute,  now 
since  the  Statute  it  is  taken  in  12  Ed.  4,  that  he  has  but  a  Fee- 
tail,  and  this  is  included  in  the  Statute,  altho'  it  is  not 
expressed,  as  the  Book  says.  And  herein  the  Book  says 
true,  for  when  the  Statute  restrained  the  Donee  from  alien- 
ing the  Fee-simple,  or  from  doing  other  Acts,  which  he  that 
has  a  Fee-simple  may  do,  it  was  presently  taken  that  the 
Fee  was  not  in  him,  for  it  would  be  idle  to  adjudge  it  in 
him,  when  he  could  not  do  any  Thing  with  it,  and  therefore 
it  was  taken,  by  Collection  and  Implication  of  the  Act,  that 


ESTATES   IN    FEE    TAIL.  239 

the  Fee-simple  continued  in  the  Donor.  So  that  he  has  one 
Inheritance,  viz.,  a  Fee-simple,  and  the  Donee  has  another 
Inheritance  of  an  inferior  Degree,  viz.,  a  Fee-tail.  And  the 
Name  of  the  Estate  was  taken  from  the  Certainty  of  the 
Limitation  of  the  Inheritance,  as  Littleton  says,  for  he  says, 
Talliare  idem  est  quod  in  certitudinem  ponere,  and  because 
in  the  Gift  it  is  expressed  of  what  Body  the  Heirs  which 
shall  inherit  shall  issue,  for  this  Reason  he  took  it  that  it 
was  called  a  Tail,  or  rather  it  might  have  the  name  of  the 
French  word  (taller),  which  is  to  cut,  for  to  dock  Wood  is 
to  cut  Wood,  and  because  the  Estate  is  docked,  or  cut  off 
(for  before  it  was  a  Fee-simple,  and  now  the  Fee  is  cut  off 
from  it,  and  the  Estate  thereby  is  docked,  cut  off,  or  made 
less),  it  may  well  be  called  an  Estate-tail,  viz.,  an  Estate 
docked,  cut  off,  or  abridged;  and  immediately  upon  the 
making  of  the  Act  it  had  this  Name  given  it.  And  it  was 
also  taken  that  the  Reversion  in  Fee  was  left  in  the  Donor, 
for  in  the  same  Session  of  Parliament  and  in  the  Act  which 
is  the  fourth  Chapter  after,  viz.,  in  the  Chapter  which  gives 
the  quod  et  deforceat,  it  is  recited,  that  if  one  had  lost  his 
Land  by  Default,  he  had  no  other  writ  to  recover  the  Land 
again  but  a  Writ  of  Right,  which  did  not  serve  for  them 
who  had  not  a  Fee-simple,  as  Tenants  for  Term  of  Life,  in 
Free-marriage,  or  in  Fee-tail,  in  which  Cases  a  Reversion  is 
reserved,  there  it  is  provided  that  such  shall  have  a  quod  ei 
deforceat.  So  that  it  is  there  called  a  Fee-tail,  and  that  in 
such  Case  a  Reversion  is  reserved.  Wherefore  they  of  the 
same  Parliament  immediately  took  it  that  the  Estate  was 
divided,  and  that  the  Donor  had  the  Fee-simple,  and  the 
Donee  a  Fee-tail,  and  this  Construction  was  gathered  from 
the  Will  of  the  Donor.  For  it  is  to  be  presumed  that  he  who 
would  not  have  the  Donee  to  do  any  Act  that  Tenant  in  Fee- 
simple  might  do,  did  not  chuse  that  he  should  have  a  Fee- 
simple  Estate.  So  that  by  the  Implication  of  the  Act,  the 
Estate  which  was  a  Fee-simple  conditional  is  divided,  and 
the  Fee  continues  always  in  the  Donor,  and  the  Donee  has 
an  Estate  tail.  And  therefore  the  Estate  of  the  Donee  is 


24O   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

altered  for  before  the  Statute  the  Issue  should  have  had  an 
Assize  of  Mortdancestor,  but  now  he  shall  not ;  and  before  it 
should  have  escheated  for  Felony  after  Issue  had,  but  now  it 
shall  not ;  and  before  the  Donee  should  forfeit  it  for  Treason, 
and  now,  as  appears  in  7  H.,  4,  he  shall  not ;  and  before  the 
Donee  might  charge  the  Land,  and  the  Issue  should  have 
held  it  charged,  but  now  he  cannot,  for  it  is  not  the  same 
Estate  that  it  was  before,  nor  in  the  same  Degree. — Per 
Dyer,  Ch.  J.,  in  Willion  v.  Berkley  (1562). 

LIT.,  §  13.  Tenant  in  fee  taile  is  by  force  of  the  statute 
of  W.  2,  cap.  i,  for  before  the  said  statute,  all  inheritances 
were  fee  simple,  for  all  the  gifts  which  be  specified  in  that 
statute  were  fee  simple  conditional  at  the  common  law,  as 
appeareth  by  the  rehearsall  of  the  same  statute.  And  now 
by  this  statute,  tenant  in  taile  is  in  two  manners,  that  is  to 
say,  tenant  in  taile  generall  and  tenant  in  taile  speciall. 

§  14.  Tenant  in  taile  generall  is,  where  lands  or  tene- 
ments are  given  to  a  man,  and  to  his  heires  of  his  bodie  be- 
gotten. In  this  case  it  is  said  generall  taile,  because  whatso- 
ever woman,  that  such  tenant  taketh  to  wife  (if  he  hath 
many  wives,  and  by  every  of  them  have  issue),  yet 
everie  one  of  these  issues  by  possibilitie  may  inherit  the 
tenements  by  force  of  the  gift;  because  that  everie  such 
issue  is  of  his  bodie  ingendred. 

§  15.  In  the  same  manner  it  is,  where  lands  or  tenements 
are  given  to  a  woman,  and  to  the  heires  of  her  bodie ;  albeit 
that  she  hath  divers  husbands,  yet  the  issue,  which  she  may 
have  by  every  husband,  may  inherit  as  issue  in  taile  by 
force  of  this  gift ;  and  therefore  such  gifts  are  called  gen- 
erall tailes. 

§  1 6.  Tenant  in  taile  speciall  is  where  lands  or  tenements 
are  given  to  a  man  and  to  his  wife,  and  to  the  heires  of  their 
two  bodies  begotten.  In  this  case  none  shall  inherit  by  force 
of  this  gift,  but  those  that  be  engendred  between  them  two. 
And  it  is  called  especiall  taile,  because  if  the  wife  die,  and 
he  taketh  another  wife,  and  have  issue,  the  issue  of  the  sec- 


ESTATES    IN    FEE    TAIL.  24! 

ond  wife  shall  not  inherite  by  force  of  this  gift,  nor  also  the 
issue  of  the  second  husband,  if  the  first  husband  die. 

§  17.  In  the  same  manner  it  is,  where  tenements  are 
given  by  one  man  to  another  with  a  wife  (which  is  the 
daughter  or  cousin  to  the  giver)  in  frankmariage,  the  which 
gift  hath  an  enheritance  by  these  words  (frankmariage)  an- 
nexed unto  it,  although  it  be  not  expressly  said  or  rehearsed 
in  the  gift  (that  is  to  say)  that  the  donees  shall  have  the 
tenements  to  them  and  to  their  heires  betweene  them  two 
begotten.  And  this  is  called  especial  taile,  because  the  issue 
of  the  second  wife  may  not  inherit. 

§  18.  And  note,  that  this  word  (Talliare)  is  the  same  as 
to  set  to  some  certaintie,  or  to  limit  to  some  certaine  inher- 
itance. And  for  that  it  is  limited  and  put  in  certaine,  what 
issue  shall  inherite  by  force  of  such  gifts,  and  how  long  the 
inheritance  shall  indure,  it  is  called  in  Latine,  feodum  talli- 
atum,  i.e.,  haereditas  in  quandam  certitudinem  limitata. 
For  if  tenant  in  generall  taile  dieth  without  issue,  the  donor 
or  his  heires  may  enter  as  in  their  reversion. 

§  19.  In  the  same  manner  it  is  of  the  tenant  in  especiall 
taile,  etc.  And  the  donees  and  their  issue  shall  do  to  the 
donor  and  to  his  heires  the  like  services,  as  the  donor  doth 
to  his  lord,  next  paramont,  except  the  donees  in  frankmar- 
riage,  who  shall  hold  quietly  from  all  manner  of  service 
(unlesse  it  be  for  fealtie)  untill  the  fourth  degree  is  past, 
and  after  the  fourth  degree  is  past  the  issue  in  the  fifth  de- 
gree, and  so  forth  the  other  issues  after  him,  shall  hold  of 
the  donor  or  of  his  heires  as  they  hold  over,  as  before  is  said. 

§  21.  And  all  these  entailes  aforesaid  be  specified  in  the 
said  statute  of  W.  2.  Also  there  be  divers  other  estates  in 
taile,  though  they  be  not  by  expresse  words  specified  in  the 
said  statute,  but  they  are  taken  by  the  equitie  of  the  same 
statute1.  As  if  lands  be  given  to  a  man,  and  to  his  heires 

1  When  a  particular  case  does  not  fall  within  the  expressed  terms  of  a 
statute,  but  the  judge,  conceiving  that  the  legislator  in  pursuance  of  his 
general  design  would  have  embraced  the  case  if  it  had  been  present  to  his 
mind,  acts  as  if  it  was  covered  by  the  statute,  the  case  is  said  to  fall 
within  the  "equity  of  the  statute."  See  Austin,  n.,  p.  596. — Digby. 


242   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

males  of  his  bodie  begotten ;  in  this  case  his  issue  male  shall 
inherit,  and  the  issue  female  shall  never  inherit,  and  yet  in 
the  other  entailes  aforesaid,  it  is  otherwise. 

§  22.  In  the  same  manner  it  is,  if  lands  or  tenements  be 
given  to  a  man  and  to  his  heires  females  of  his  bodie  begot- 
ten; in  this  case  his  issue  female  shall  inherit  by  force  and 
forme  of  the  said  gift,  and  not  his  issue  male.  For  in  such 
cases  of  gifts  in  taile,  the  will  of  the  donor  ought  to  be  ob- 
served, who  ought  to  inherit,  and  who  not. 

§  23.  And  in  case  where  lands  or  tenements  be  given  to 
a  man,  and  to  the  heires  males  of  his  bodie,  and  he  hath  issue 
two  sonnes,  and  dieth,  and  the  eldest  son  enter  as  heire 
male,  and  hath  issue  a  daughter,  and  dieth,  his  brother  shall 
have  the  land,  and  not  the  daughter,  for  that  the  brother  is 
heire  male.  But  otherwise  it  is  in  the  other  entailes,  which 
are  specified  in  the  sayd  statute. 

§  24.  Also,  if  lands  be  given  to  a  man  and  to  the  heires 
males  of  his  body,  and  he  hath  issue  a  daughter,  who  hath 
issue  a  sonne,  and  dieth,  and  after  the  donee  die;  in  this 
case,  the  son  of  the  daughter  shall  not  inherit  by  force  of  the 
entaile ;  because  whosoever  shall  inherit  by  force  of  a  gift  in 
taile  made  to  the  heires  males,  ought  to  convey  his  descent 
whole  by  the  heires  males.  Also  in  this  case  the  donor  may 
enter,  for  that  the  donee  is  dead  without  issue  male  in  the 
law,  insomuch  as  the  issue  of  the  daughter  cannot  convey 
to  himselfe  the  descent  by  an  heire  male. 

2  BL.  COM.,  113-116.  Next,  as  to  the  several  species  of 
estates-tail,  and  how  they  are  respectively  created.  Estates- 
tail  are  either  general  or  special.  Tail-general  is  where 
lands  and  tenements  are  given  to  one,  and  the  heirs  of  his 
body  begotten;  which  is  called  tail-general,  because,  how 
often  soever  such  donee  in  tail  be  married,  his  issue  in  gen- 
eral by  all  and  every  such  marriage  is,  in  successive  order, 
capable  of  inheriting  the  estate-tail,  per  formam  doni.  Ten- 
ant in  tail  special  is  where  the  gift  is  restrained  to  certain 
heirs  of  the  donee's  body,  and  does  not  go  to  all  of  them  in 


ESTATES    IN    FEE    TAIL.  243 

general.  And  this  may  happen  several  ways.  I  shall  in- 
stance in  only  one ;  as  where  lands  and  tenements  are  given 
to  a  man  and  the  heirs  of  his  body,  on  Mary  his  now  wife  to 
be  begotten;  here  no  issue  can  inherit,  but  such  special  issue 
as  is  engendered  between  them  two;  not  such  as  the  hus- 
band may  have  by  another  wife ;  and  therefore  it  is  called 
special  tail.  And  here  we  may  observe,  that  the  words  of 
inheritance  (to  him  and  his  heirs)  give  him  an  estate  in  fee ; 
but  they  being  heirs  to  be  by  him  begotten,  this  makes  it  a. 
fee-tail ;  and  the  person  being  also  limited,  on  whom  such 
heirs  shall  be  begotten  (viz.,  Mary,  his  present  wife},  this 
makes  it  a  fee-tail  special. 

Estates,  in  general  and  special  tail,  are  farther  diversified 
by  the  distinction  of  sexes  in  such  entails ;  for  both  of  them 
may  either  be  in  tail  male  or  tail  female.  As  if  lands  be 
given  to  a  man,  and  his  heirs  male  of  his  body  begotten,  this 
is  an  estate  in  tail  male,  general ;  but  if  to  a  man  and  the  heirs 
female  of  his  body  on  his  present  ivife  begotten,  this  is  art 
estate  tail  female  special.  And  in  case  of  an  entail  male,  the 
heirs  female  shall  never  inherit,  nor  any  derived  from  them ; 
nor,  e  converse,  the  heirs  male,  in  case  of  a  gift  in  tail  fe- 
male. Thus,  if  the  donee  in  tail  male  hath  a  daughter,  who> 
dies  leaving  a  son,  such  grandson  in  this  case  cannot  inherit: 
the  estate-tail ;  for  he  cannot  deduce  his  descent  wholly  by- 
heirs  male.  And  as  the  heir  male  must  convey  his  descent 
wholly  by  males,  so  must  the  heir  female  wholly  by  females. 
And  therefore  if  a  man  hath  two  estates  tail,  the  one  in  tail 
male,  the  other  in  tail  female ;  and  he  hath  issue  a  daughter, 
which  daughter  hath  issue  a  son ;  this  grandson  can  succeed 
to  neither  of  the  estates ;  for  he  cannot  convey  his  descent 
wholly  either  in  the  male  or  female  line. 

As  the  word  heirs  is  necessary  to  create  a  fee,  so  in  far- 
ther limitation  of  the  strictness  of  the  feodal  donation,  the 
word  body,  or  some  other  words  of  procreation,  are  neces- 
sary to  make  it  a  fee-tail,  and  ascertain  to  what  heirs  in  par- 
ticular the  fee  is  limited.  If,  therefore,  either  the  words  of 
inheritance,  or  words  of  procreation  be  omitted,  albeit  the 


244   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

others  are  inserted  in  the  grant,  this  will  not  make  an  estate- 
tail.  As,  if  the  grant  be  to  a  man  and  his  issue  of  his  body, 
to  a  man  and  his  seed,  to  a  man  and  his  children,  or  off- 
spring; all  these  are  only  estates  for  life,  there  wanting  the 
words  of  inheritance,  his  heirs.  So,  on  the  other  hand,  a 
gift  to  a  man,  and  his  heirs  male  or  female,  is  an  estate  in 
fee-simple,  and  not  in  fee-tail :  for  there  are  no  words  to  as- 
certain the  body  out  of  which  they  shall  issue.  Indeed,  in 
last  wills  and  testaments,  wherein  greater  indulgence  is  al- 
lowed, an  estate-tail  may  be  created  by  a  devise  to  a  man 
and  his  seed,  or  to  a  man  and  his  heirs  male;  or  by  other  ir- 
regular modes  of  expression.  .  .  . 

The  incidents  to  a  tenancy  in  tail,  under  the  statute 
Westm.  2,  are  chiefly  these:  I.  That  a  tenant  in  tail  may 
commit  waste  on  the  estate  tail,  by  felling  timber,  pulling 
down  houses,  or  the  like,  without  being  impeached,  or  called 
to  account  for  the  same.  2.  That  the  wife  of  the  tenant  in 
tail  shall  have  her  dower,  or  thirds,  of  the  estate  tail.  3. 
That  the  husband  of  a  female  tenant  in  tail  may  be  ten- 
ant by  the  curtesy  of  the  estate  tail.  4.  That  an  estate 
tail  may  be  barred,  or  destroyed  by  a  fine,  by  a  common  re- 
covery, or  by  lineal  warranty  descending  with  assets  to  the 
heir.  .  .  . 

Thus  much  for  the  nature  of  estates  tail ;  the  estab- 
lishment of  which  family  law  (as  it  is  properly  styled  by 
Pigott1)  occasioned  infinite  difficulties  and  disputes.  Chil- 
dren grew  disobedient  when  they  knew  they  could  not  be  set 
aside :  farmers  were  ousted  of  their  leases  made  by  tenants 
in  tail ;  for,  if  such  leases  had  been  valid,  then  under  color 
of  long  leases  the  issue  might  have  been  virtually  disinher- 
ited ;  creditors  were  defrauded  of  their  debts ;  for,  if  a  ten- 
ant in  tail  could  have  charged  his  estate  with  their  payment, 
he  might  also  have  defeated  his  issue,  by  mortgaging  it  for 
as  much  as  it  was  worth :  innumerable  latent  entails  were 
produced  to  deprive  purchasers  of  the  lands  they  had  fairly 
bought ;  of  suits  in  consequence  of  which  our  ancient  books 
1  Com.  Recov.  5. 


ESTATES   IN    FEE    TAIL.  245 

\ 

are  full ;  and  treasons  were  encouraged,  as  estates  tail  were 
not  liable  to  forfeiture  longer  than  the  tenant's  life.  So  that 
they  were  justly  branded  as  the  source  of  new  contentions, 
and  mischiefs  unknown  to  the  common  law ;  and  almost  uni- 
versally considered  as  the  common  grievance  of  the  realm. 
But  as  the  nobility  were  always  fond  of  this  statute,  because 
it  preserved  their  family  estates  from  forfeiture,  there  was 
little  hope  of  procuring  a  repeal  by  the  legislature,  and 
therefore,  by  the  contrivance  of  an  active  and  politic  prince, 
a  method  was  devised  to  evade  it. 

LEAKE,  LAND  LAW,  217.  An  estate  tail  may  be  created 
with  a  conditional  limitation,  or  as  it  is  here  commonly 
called,  a  proviso  for  cesser,  so  that  in  a  certain  specified 
event  the  estate  tail  ceases,  and  the  reversion  or  next  vested 
estate  in  remainder  takes  effect  in  immediate  possession. 

Instances  occur  in  settlements  in  which  estates  tail  are 
limited  with  the  proviso  that  if  the  tenant  in  tail  in  posses- 
sion shall  refuse  or  neglect  to  take  the  name  and  arms  of  the 
settler,  the  estate  tail  shall  cease  and  determine  as  if  he  were 
dead  and  there  were  a  failure  of  issue  inheritable  under  the 
entail.  A  like  proviso  is  sometimes  used  to  determine  the 
estate  tail,  if  the  tenant  in  possession  shall  neglect  to  reside 
upon  the  land,  or  if  he  shall  become  entitled  to  some  other 
settled  estate. 

DIGBY,  HIST.  REAL  PROP.,  Ch.  V.,  §  2.  Inasmuch  as  the 
estate  of  tenant  in  tail  was,  according  to  the  metaphorical 
expression  of  the  lawyers,  "carved  out  of,"  that  is,  less  than 
an  estate  in  fee  simple  and  different  from  it,1  it  followed 
that  if  tenant  in  fee  simple  made  a  gift  in  tail,  such  a  gift 
was  not  within  the  Statute  of  Quia  Emptores,  but  a  tenure 

1  An  estate  tail  is  said  to  be  less  than  a  fee  simple,  because  the  law 
regards  as  a  disposable  interest  the  possibility  of  enjoying  the  lands  after 
the  determination,  by  failure  of  issue  or  otherwise,  of  the  estate  tail. 
There  is  no  estate  larger  than  a  fee  simple,  because  the  law  does  not 
regard  the  possibility  of  the  enjoyment  of  the  estate  after  the  failure  of 
heirs  general  as  a  disposable  interest.  Littleton,  sec.  18. 


246   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

was  created  between  tenant  in  tail  and  tenant  in  fee  simple, 
the  former  holding  of  the  latter.  It  must  be  borne  in  mind 
that  estates  tail  are  only  known  in  freehold  interests,  and 
that  there  can  be  no  estate  tail  in  a  chattel-interest,  such 
as  a  term  of  years. 

The  history  of  the  alienation  of  estates  tail  is  connected 
with  the  difficult  and  obsolete  doctrine  of  warranty,  of 
which  the  courts  took  advantage  to  break  in  upon  the  policy 
of  the  law  as  conceived  by  the  great  ba'rons  who  procured 
the  enactment  of  the  Statute  of  Westminster  II.  The  effect 
of  a  warranty  accompanying  a  gift  of  an  estate  of  inheri- 
tance was  to  oblige  the  warrantor  or  donor  to  defend  the 
possession  of  his  donee.  If  the  donee  was  ousted  by  a 
claimant  establishing  a  superior  title,  the  warrantor  was 
bound  to  give  the  donee  or  his  representatives  lands  of  value 
equal  to  those  of  which  he  had  been  deprived.  The  burden 
of  this  obligation  would  descend  to  the  heirs  of  the  war- 
rantor (at  least  to  the  extent  of  preventing  the  heir  from 
disputing  his  ancestor's  gift),  and  the  benefit  of  it  to  the 
heirs  of  the  donee.  This  principle  would  have  been  suffi- 
cient, if  applied  to  estates  tail,  to  have  enabled  a  tenant  in 
tail,  by  alienating  his  land  with  a  warranty,  to  have  given 
the  purchaser  an  estate  which  his  heir  could  not  defeat.  It 
seems,  however,  to  have  been  held  early  in  the  reign  of 
Edward  II.  that,  if  tenant  in  tail  aliened  the  land  with 
warranty,  the  heir  of  the  tenant  in  tail  was  not  bound  by  his 
ancestor's  alienation  and  warranty  (that  is,  could  defeat  the 
estate  of  the  donee  or  his  heirs  by  claiming  in  opposition  to 
the  gift  of  the  ancestor),  unless  he  had  assets  (lands  in  fee 
simple  equivalent  to  those  which  had  been  granted  away) 
by  descent  from  his  ancestor.  On  the  other  hand,  if  he  had 
assets,  the  ordinary  rule  prevailed,  and  the  heir  of  the  war- 
rantor was  bound  by  his  ancestor's  warranty.  And  if  the 
warrantor  was  a  prior  tenant  in  tail,  who  had  died  without 
issue,  upon  which,  according  to  the  limitations  of  the  estate, 
the  land  went  over  to  a  subsequent  tenant  in  tail,  such  last 
tenant  in  tail  was  bound  by  the  warranty  of  his  predecessor, 


ESTATES    IN    FEE    TAIL.  247 

even  though  there  were  no  assets.  This  was  called  col- 
lateral as  opposed  to  lineal  warranty. 

The  doctrine  that  the  issue  of  the  tenant  in  tail  was  bound 
by  his  ancestor's  alienation  with  warranty  only  in  cases 
where  he  had  assets  by  descent,  greatly  narrowed  the  power 
of  effectual  alienation  possessed  by  the  tenant  in  tail.  And 
it  must  be  remembered  that  even  where  such  alienation  was 
binding  on  the  issue,  it  would  not  bind  the  lord  or  donor  so 
as  to  bar  him  of  his  reversion  in  the  event  of  the  failure  of 
issue  of  the  donee  in  tail. 

Thus  the  Statute  De  Donis,  as  interpreted  by  the  courts, 
put  an  effectual  check  to  the  practice  of  free  alienation  of 
estates,  where,  asv  was  commonly  the  case,  words  of  procrea- 
tion were  added  to  the  words  of  inheritance.  As  time 
went  on  the  great  inconvenience  of  such  a  restriction 
was  strongly  felt.  Titles  were  insecure,  for  an  old 
entail,  of  which  nothing  was  known,  might  be  brought  to 
light ;  nor  would  any  period  of  enjoyment,  however  long, 
afford  an  answer  to  such  a  claim.  "Farmers  were  ousted  of 
their  leases,  creditors  defrauded  of  their  debts."  The  free 
alienation  of  land  was  restrained,  a  grievance  which  was 
probably  felt  with  increasing  severity  in  consequence  of  the 
impoverishment  of  the  landowners  caused  by  the  wars  of 
the  Roses.  The  king,  too,  suffered  by  the  protection  against 
forfeiture  which  the  practice  afforded  to  the  issue  of  a  trai- 
tor. Thus  all  members  of  the  community,  except  perhaps 
the  great  landowners  themselves,  were  interested  in  obtain- 
ing a  relaxation  of  the  practice  of  strictly  entailing  lands 
which  had  grown  up  under  the  provisions  of  the  Statute  of 
Westminster  II.1 

1  •'  But  the  true  policy  and  rule  of  the  common  law  in  this  point  was 
in  effect  overthrown  by  the  Statute  De  Donis  Conditionalibus,  which 
established  a  general  perpetuity  by  Act  of  Parliament  for  all  who  had  or 
would  make  it,  by  force  whereof  all  the  possessions  in  England  in  effect 
were  entailed  accordingly,  which  was  the  occasion  and  cause  of  the  said 
and  divers  other  mischiefs.  And  the  same  was  attempted  and  endeavored 
to  be  remedied  at  divers  parliaments,  and  divers  bills  were  exhibited 
accordingly  (which  I  have  seen),  but  they  were  always  on  one  pretence  or 


248   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

Although  feigned  recoveries,1  or  fictitious  suits  in  which  a 
writ  of  right  was  brought  by  a  third  person  against  the  ten- 
ant, who  thereupon  suffered  judgment  to  pass  against  him, 
had  long  been  known  as  a  mode  of  conveying  lands,  it  was 
for  some  time  thought  that  the  heir  of  tenant  in  tail  was  not 
bound  by  a  judgment  so  obtained  against  his  ancestor.  "  In 
the  reigns  of  Henry  IV.  and  Henry  V.  some  doubts  began 
to  be  entertained  whether  a  recovery  suffered  by  tenant  in 
tail  was  not  good  against  the  issue."2  These  doubts  con- 
tinued without  being  finally  determined  during  the  reign  of 
Henry  VI.  They  were  at  length  set  at  rest  by  the  introduc- 
tion of  a  series  of  fictions,  by  virtue  of  which  it  was  feigned 
that  a  gift  with  warranty  had  been  made  by  the  original 
donor  of  the  tenant  in  tail,  that  a  claim  was  made  to  the 
lands  by  a  person  having  a  title  superior  to  that  of  the  orig- 
inal donor,  and  that  tenant  in  tail  received  from  the  original 
donor  an  equivalent  for  the  lands  of  which  he  was  deprived 
by  the  judgment.  Further,  the  supposed  original  donor 
was  made  a  party  to  the  suit,  and,  upon  his  failing  to  defend 
his  fictitious  gift,  he  and  his  heirs  were  barred  of  their  re- 
version. This  was  the  course  adopted,  though  possibly  not 
for  the  first  time,  in  the  famous  "  Taltarum's  Case  "  ( 12  Ed- 
ward IV.)  .  .  .  From  this  time  till  1834  (3  and  4 
Will.  IV.,  chap.  74)  it  became  the  common  practice  for  ten- 
ant in  tail  to  "  suffer  a  recovery ;"  that  is,  by  a  proceeding 
similar  to  that  adopted  in  Taltarum's  case,  to  convert  his 
estate  into  a  fee  simple.  In  effect,  therefore,  wherever  an 

another  rejected.  But  the  truth  was  that  the  lords  and  commons,  know- 
ing that  their  estates  tail  were  not  to  be  forfeited  for  felony  or  treason,  as 
their  estates  of  inheritance  were  before  the  said  Act  (and  chiefly  in  the 
time  of  Hen.  III.,  in  the  Barons'  War),  and  finding  that  they  were  not 
answerable  for  the  debts  or  incumbrances  of  their  ancestors,  nor  did  the 
sales,  alienations,  or  leases  of  their  ancestors  bind  them  for  the  lands  which 
were  entailed  to  their  ancestors  they  always  rejected  such  bills,  and  the 
same  continued  in  the  residue  of  the  reign  of  E.  I.  and  the  reigns  of  E.  II., 
E.  III.,  R.  II.,  H.  IV.,  H.  V.  and  H.  VI.,  till  about  the  mh  year  of 
E.  IV.,  etc."  Sir  Anthony  Mi Idmay's  Case,  Coke's  Reports,  6.40.  a.  See 
Blackstone,  II.  116. 

1  See  page  418,  post. — ED.  *  Reeves,  ii.  573. 


ESTATES    IN    FEE    TAIL.  249 

estate  tail  was  given,  tenant  in  tail  might,  so  soon  as  he  came 
of  age,  by  this  process  give  to  another  an  estate  in  fee  sim- 
ple, which  by  arrangement  might  then  be  re-conveyed  to 
himself,  and  thus  he  was  enabled  to  cut  off,  bar,  or  defeat  the 
expectations  of  his  own  issue,  and  the  interests  of  all  persons 
claiming  after  him  in  remainder  or  reversion.  After  a 
statute  passed  in  the  reign  of  Henry  VIII.  the  same  result 
might  have  been  effected  by  a  fine. 

By  the  above-mentioned  statute  (3  and  4  Will.  IV.,  c. 
74)  fines  and  recoveries  were  abolished,  and  tenant  in  tail 
may  now,  by  a  deed  enrolled  in  the  Chancery  Division  of  the 
High  Court  of  Justice,  alienate  his  lands  for  any  estate  in 
fee-simple  or  otherwise,  and  thus  defeat  the  expectations  of 
his  own  issue  and  of  all  remaindermen  and' reversioners. 

The  only  additional  restriction  imposed  upon  the  aliena- 
tion of  an  estate  tail  is  that  the  consent  of  the  person  who  is 
called  the  Protector  of  the  settlement  is  necessary  to  its  be- 
ing effectually  barred.  Alienation  by  tenant  in  tail  without 
this  consent  binds  his  own  issue,  but  not  remaindermen  or 
reversioners,  and  creates  what  is  called  a  "  base  fee."  The 
Protector  of  the  settlement  is  usually  the  tenant  for  life  in 
possession;  but  the  settlor  of  the  lands  may  appoint  in  his 
place  any  number  of  persons,  not  exceeding  three,  to  be  to- 
gether Protector  during  the  continuance  of  the  estates  pre- 
ceding the  estate  tail.  The  practical  effect,  therefore,  of  an 
estate  tail  at  the  present  day  is  to  prevent  the  alienation  of 
lands  for  a  valid  estate  of  inheritance  in  all  cases  till  tenant 
in  tail  comes  of  age.  After  this  his  power  of  disposing  of 
the  lands  differs  from  that  of  tenant  in  fee-simple  only  in  the 
mode  in  which  it  is  exercised,  and  in  the  necessity,  where 
the  estate  is  not  in  possession,  for  the  consent  of  the  Pro- 
tector. 

Sue.  GILB.,  USES,  33.  A  fine  or  recovery  by  an  equitable 
tenant  in  tail  has  precisely  the  same  operation  as  a  fine  or 
recovery  by  a  legal  tenant  in  tail,  but  no  greater  ( i  Ch.  Cas. 
213)  ;  although  it  was  once  thought  that  a  recovery  would 


25O   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

not  bar  the  remainders  over.  I  Ch.  Cas.  68.  In  later  times 
it  was  held  that  equitable  estates  tail,  with  the  remainders 
over,  might  be  barred  by  a  common  conveyance  (i  Vern. 
440;  2  Vern.  131 ;  id.  344;  Prec.  Ch.  81)  ;  or  even  by  will 
(Prec.  Ch.  228)  ;  but  at  this  day  it  is  well  settled  that  a  fine 
or  recovery  is  as  essential  to  bar  an  equitable  as  a  legal  en- 
tail in  a  freehold  estate,  i  P.  Wms.  87.  ...  It  is 
also  settled  as  a  general  rule  that  a  recovery  of  an  equit- 
able estate  must  in  all  respects  imitate  a  legal  recovery ; 
and  therefore  the  person  suffering  an  equitable  recovery 
must  have  such  an  equitable  estate  as,  had  it  been  a  legal 
estate,  would  have  enabled  him  to  suffer  a  legal  recovery. — 
Sngden's  note. 


(c~)  Fee  Tail  in  the  United  States. 

4  KENT  COM.,  14.  Estates  tail  were  introduced  into  this 
country  with  the  other  parts  of  the  English  jurisprudence, 
and  they  subsisted  in  full  force  before  our  revolution,  sub- 
ject equally  to  the  power  of  being  barred  by  a  fine  or  com- 
mon recovery.  But  the  doctrine  of  estates  tail,  and  the  com- 
plex and  multifarious  learning  connected  with  it,  have  be- 
come quite  obsolete  in  most  parts  of  the  United  States.  In 
Virginia,  estates  tail  were  abolished  as  early  as  1776;  in 
New  Jersey,  estates  tail  were  not  abolished  until  1820;  and 
in  New  York,  as  early  as  1782,  and  all  estates  tail  were 
turned  into  estates  in  fee  simple  absolute.  So,  in  North 
Carolina,  Kentucky,  Tennessee,  and  Georgia,  estates  tail 
have  been  abolished,  by  being  converted  by  statute  into  es- 
tates in  fee  simple.  In  the  States  of  Vermont,  South  Caro- 
lina, and  Louisiana,  they  do  not  appear  to  be  known  to  their 
laws,  or  ever  to  have  existed ;  but  in  several  of  the  other 
States  they  are  partially  tolerated,  and  exist  in  a  qualified 
degree.1 

1  Estates  tail  exist   in   Maine,  Massachusetts,  Delaware  and   Pennsyl- 


ESTATES    IN    FEE    TAIL.  251 

N.  Y.  REAL  PROP.  LAW,  §  22.  Estates  tail  have  been 
abolished ;  and  every  estate  which  would  be  adjudged  a  fee- 
tail,  according  to  the  law  of  this  State,  as  it  existed  before 
the  twelfth  day  of  July,  seventeen  hundred  and  eighty-two, 
shall  be  deemed  a  fee  simple;  and  if  no  valid  remainder  be 
limited  thereon,  a  fee  simple  absolute.  Where  a  remainder 
in  fee  shall  be  limited  on  any  estate  which  would  be  a  fee 
tail,  according  to  the  law  of  this  State,  as  it  existed  previous 
to  such  date,  such  remainder  shall  be  valid,  as  a  contingent 
limitation  on  a  fee,  and  shall  vest  in  possession  on  the  death 
of  the  first  taker,  without  issue  living  at  the  time  of  such 
death. 

N.  J.  DESCENT  ACT,  §  n.  That  from  and  after  the  pass- 
ing of  this  act  where  any  conveyance  or  devise  shall  be 
made,  whereby  the  grantee  or  devisee  shall  become  seised 
in  law  or  equity  of  such  estate  in  any  lands  or  tenements 
as  under  the  statute  of  the  thirteenth  of  Edward  the  first 
(called  the  Statute  of  Entails),  would  have  been  held  an 
estate  in  fee  tail,  every  such  conveyance  or  devise  shall  vest 
an  estate  for  life  only,  in  such  grantee  or  devisee,  who  shall 
possess  and  have  the  same  power  over,  and  right  in,  such 
premises,  and  no  other,  as  a  tenant  for  life  thereof  would 
have  by  law ;  and  upon  the  death  of  such  grantee  or  devisee 
the  said  lands  and  tenements  shall  go  to  and  be  vested  in  the 
children  of  such  grantee  or  devisee,  equally  to  be  divided 
between  them  as  tenants  in  common  in  fee,  but  if  there  be 
only  one  child,  then  to  that  one  in  fee;  and  if  any  child  be 
dead,  the  part  which  would  have  come  to  him  or  .her  shall 
go  to  his  or  her  issue  in  like  manner;  provided  that  the 

vania,  subject,  nevertheless,  to  be  barred  by  deed,  and  by  common  recov- 
ery, and  in  two  of  these  States  by  will. — Kent. 

"  In  Pennsylvania,  by  the  Act  of  Assembly  of  April  27,  1855,  it  was 
provided  that  whenever  hereafter,  by  any  gift,  conveyance  or  devise, 
an  interest  in  fee  tail  would  be  created  according  to  the  existing  laws  of 
the  State,  it  shall  be  taken  and  construed  to  be  an  estate  in  fee  simple, 
and  as  such  shall  be  inheritable  and  freely  alienable." — Sharswood's  note 
to  2  Bl.  Com.  119. 


READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

widow  of  any  such  grantee  or  devisee  of  such  estate  shall 
have  her  dower  in  the  premises  in  like  manner  as  if  the  said 
grantee  or  devisee  had  died  seized  thereof  in  fee  simple; 
and  provided  also,  that  where  any  person  shall  marry  a 
woman  being  a  grantee  or  devisee  and  seized  of  such  estate, 
the  said  husband,  after  the  death  of  his  said  wife,  shall  have 
his  curtesy  in  the  said  lands  and  tenements,  if  there  be  issue 
of  the  marriage,  in  like  manner  as  if  said  wife  had  died 
seized  of  an  estate  of  inheritance  in  fee  tail  of  the  premises. 

MASS.  PUB.  STAT.,  1882,  c.  120,  §  15.  A  person  actually 
seised  of  lands  as  tenant  in  tail  may  convey  such  lands 
in  fee  simple  by  a  deed  in  common  form,  in  like  manner  as  if 
he  were  seised  thereof  in  fee  simple ;  and  such  conveyance 
shall  bar  the  estate  tail  and  all  remainders  and  reversions 
expectant  thereon. 

§  17.  Equitable  estates  tail,  in  possession  or  remainder, 
and  all  remainders  and  reversions  expectant  thereon,  may 
be  barred  in  the  same  manner  as  legal  estates  tail  and  the 
remainders  and  reversions  expectant  thereon. 

CONN.  GEN.  L.,  §  2952.  No  estate  in  fee  simple,  fee  tail, 
or  any  less  estate,  shall  be  given  by  deed  or  will,  to  any 
persons  but  such  as  are,  at  the  time  of  making  such  deed  or 
will,  in  being,  or  to  their  immediate  issue  or  descendants, 
and  every  estate  given  in  fee  tail  shall  be  an  absolute  estate 
in  fee  simple,  to  the  issue  of  the  first  donee  in  tail. 


CHAPTER  IV. 

ESTATES  FOR  LIFE, 
(a)  Conventional  Life  Estates. 

LIT.,  §  56.  Tenant  for  term  of  life  is  where  a  man  let- 
teth  lands  or  tenements  to  another  for  terme  of  the  life  of 
the  lessee,  or  for  terme  of  the  life  of  another  man.  In  this 
case  the  lessee  is  tenant  for  terme  of  life.  But  by  common 
speech  he  which  holdeth  for  terme  of  his  owne  life,  is  called 
tenant  for  terme  of  his  life ;  and  he  which  holdeth  for  terme 
of  another's  life,  is  called  tenant  for  terme  of  another  man's 
life  (pur  terme  d'auter  vie). 

§  57.  And  it  is  to  be  understood,  that  there  is  feoffor  and 
feoffee,  donor  and  donee,  lessor  and  lessee.  Feoffor  is  prop- 
erly where  a  man  enfeoffes  another  in  any  lands  or  tene- 
ments in  fee  simple,  he  which  maketh  the  feoffment  is  called 
the  feoffor,  and  he  to  whom  the  feoffment  is  made  is  called 
the  feoffee.  And  the  donor  is  properly  where  a  man  giveth 
certaine  lands  or  tenements  to  another  in  taile,  he  which 
maketh  the  gift  is  called  the  donor,  and  he  to  whom  the  gift 
is  made  is  called  the  donee.  And  the  lessor  is  properly 
where  a  man  letteth  to  another  lands  or  tenements  for  terme 
of  life,  or  for  terme  of  years,  or  to  hold  at  will,  he  which 
maketh  the  lease  is  called  lessor  and  he  to  whom  the  lease 
is  made  is  called  lessee.  And  every  one  which  hath  an 
estate  in  any  lands  or  tenements  for  terme  of  his  owne  or 
another  man's  life,  is  called  tenant  of  freehold,  and  none 
other  of  a  lesser  estate  can  have  a  freehold ;  but  they  of  a 
greater  estate  have  a  freehold ;  for  he  in  fee  simple  hath  a 
freehold,  and  tenant  in  taile  hath  a  freehold,  &c. 


254   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

Co.  LIT:,  42,  a.  If  a  man  grant  an  estate  to  a  woman 
dum  sola  fuit,  or  durante  viduitate,  or  quamdiu  se  bene  ges- 
serit,  or  to  a  man  and  a  woman  during  the  coverture,  or  as 
long  as  the  grantee  dwell  in  such  a  house,  or  so  long  as  he 
pay  £10,  &c.,  or  untill  the  grantee  be  promoted  to  a  benefice, 
or  for  any  like  incertaine  time,  which  time,  as  Bracton  saith, 
is  tempus  indeterminatum:  in  all  these  cases,  if  it  be  of  lands 
or  tenements,  the  lessee  hath  in  judgment  of  law  an  estate 
for  life  determinable,  if  livery  be  made ;  and  if  it  be  of  rents, 
advowsons,  or  any  other  thing  that  lie  in  grant,  he  hath 
a  like  estate  for  life  by  the  delivery  of  the  deed,  and  in 
count  or  pleading  he  shall  alledge  the  lease,  and  conclude 
that  by  force  thereof  he  was  seised  generally  for  terme  of 
his  life. 

If  a  man  make  a  lease  of  a  manor  that  at  the  time  of  the 
lease  made  is  worth  £20  per  annum  to  another  until  £  100  be 
paid,  in  this  case,  because  the  annuall  profits  of  the  manor 
are  incertaine,  he  hath  an  estate  for  life,  if  livery  be  made, 
determinable  upon  the  levying  of  the  £100.  But  if  a  man 
grant  a  rent  of  £20  per  annum  untill  £100  be  paid,  there  he 
hath  an  estate  for  five  yeares,  for  there  it  is  certaine,  and  de- 
pends upon  no  incertainty.  And  yet  in  some  cases  a  man 
shall  have  an  incertaine  interest  in  lands  or  tenements,  and 
yet  neither  an  estate  for  life,  for  yeares,  or  at  will.  As  if  a 
man  by  his  will  in  writing  devise  his  lands  to  his  executors 
for  payment  of  debts  and  untill  his  debts  be  paid  ;  in  this  case 
the  executors  have  but  .a  chattell,  and  an  incertaine  interest 
in  the  land  until  his  debts  be  paid ;  for  if  they  should  have 
it  for  their  lives,  then  by  their  death  their'  estate  should 
cease,  and  the  debts  unpaid ;  but  being  a  chattell,  it  shall  go 
to  the  executors  of  executors  for  the  payment  of  his  debts ; 
and  so  note  a  diversity  betweene  a  devise  and  a  conveyance 
at  the  common  law  in  his  lifetime.  And  tenant  by  statute 
merchant,  by  statute  staple,  and  by  elegit,  have  incertaine 
interests  in  lands  or  tenements,  and  yet  they  have  but 
chattels  and  no  freehold,  whose  estates  are  created  by 
divers  acts  of  parliament.  .  .  . 


ESTATES    FOR   LIFE.  255 

A.,  tenant  in  fee  simple,  makes  a  lease  of  lands  to  B.,  to 
have  and  to  hold  to  B.  for  terme  of  life,  without  mentioning 
for  whose  life  it  shall  be,  it  shall  be  deemed  for  terme  of  the 
life  of  the  lessee,  for  it  shall  be  taken  most  strongly  against 
the  lessor,  and  as  hath  beene  said  an  estate  for  a  man's  own 
life  is  higher  than  for  the  life  of  another. 

41,  b.  "Ou  per  terme  de  vie  d'un  auter  home."  Now  it 
is  to  be  understood,  that  if  the  lessee  in  that  case  dieth,  liv- 
ing cesty  que  vie  (that  is,  he  for  whose  life  the  lease  was 
made),  he  that  first  entreth  shall  hold  the  land  during  that 
other  man's  life,  and  he  that  so  entreth  is  within  Littleton's 
words,  viz.,  tenant  per  auter  vie,  and  subject  to  the  payment 
of  the  rent  reserved,  and  is  in  law  called  an  occupant  (oc- 
cupans],  because  his  title  is  by  his  first  occupation.  And  so 
if  tenant  for  his  owne  life  grant  over  his  estate  to  another, 
if  the  grantee  dyeth  there  shall  be  an  occupant.  In  like 
manner  it  is  of  an  estate  created  by  law ;  for  if  tenant  by  the 
curtesie  or  tenant  in  dower  grant  over  his  or  her  estate,  and 
the  grantee  dieth,  there  shall  be  an  occupant.  But  against 
the  king  there  shall  be  no  occupant,  because  nullum  tempus 
occurrit  regi.  And  therefore  no  man  shall  gain  the  king's 
land  by  priority  of  entry.  There  can  be  no  occupant  of  any 
thing  that  lyeth  in  grant,  and  that  cannot  passe  without 
deed,  because  every  occupant  must  claime  by  a  que  estate, 
and  averre  the  life  of  cesty  que  vie.  It  were  good  to  prevent 
the  incertainty  of  the  estate  of  the  occupant  to  adde  these 
words  (to  have  and  to  hold  to  him  and  his  heires  during  the 
life  of  cesty  que  vie},  and  this  shall  prevent  the  occupant 
and  yet  the  lessee  may  assigne  it  to  whom  he  will ;  or  if  he 
hath  already  an  estate  for  another  man's  life  without  these 
words,  then  it  were  good  for  him  to  assigne  his  estate  to 
divers  men  and  their  heires  during  the  life  of  cesty  que  vie. 

ID.,  251,  a.  It  is  to  be  observed,  that  a  forfeiture  may  be 
made  by  the  alienation  of  a  particular  tenant,  two  manner  of 
wayes;  either  in  pais,  or  by  matter  of  record.  In  pais,  of 
lands  and  tenements  which  lie  in  livery,  where  a  greater 
estate  passeth  by  livery  than  the  particular  tenant  may  law- 


256   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

fully  make,  whereby  the  reversion  or  remainder  is  devested, 
as  here  in  the  example  that  Littleton  putteth  when  tenant 
for  life  alieneth  in  fee,  which  must  bee  understood  of  a  feoff- 
ment,  fine  or  recoverie  by  consent.  If  tenant  for  life,  and 
hee  in  the  remainder  for  life  in  Littleton's  case,  hath  joyned 
in  a  feoffment  in  fee,  this  had  beene  a  forfeiture  of  both 
their  estates,  because  hee  in  the  remainder  is  particeps  in- 
juriae.  And  so  it  is  if  hee  in  the  remainder  for  life  had 
entred,  and  disseised  tenant  for  life,  and  made  a  feoffment 
in  fee,  this  had  beene  a  forfeiture  of  the  right  of  his  re- 
mainder. 

A  particular  estate  of  anything  that  lies  in  grant  cannot 
be  forfeited  by  any  grant  in  fee  by  deed.  As  if  tenant  for 
life  or  yeares  of  an  advowson,  rent,  common,  or  of  a  rever- 
sion or  remainder  of  land,  by  deed  grant  the  same  in  fee, 
this  is  no  forfeiture  of  their  estates,  for  that  nothing  passes 
thereby,  but  that  which  lawfully  may  passe;  and  of  that 
opinion  is  Littleton  in  our  bookes. 

5  Co.  REP.,  13,  a.  Between  Peter  Rosse  and  Aid  wick  in 
an  Ejectione  firmae,  which  began  Pasch.  37  Eliz.  Rot.  499, 
the  case  was  such ;  a  lease  is  made  to  A.  and  his  assigns, 
habendum  to  him  during  his  life,  and  the  lives  of  B.  and  C. ; 
and  if  this  limitation  during  the  life  of  B.  and  C.  were  void 
or  not,  was  the  question.  And  it  was  adjudged,  that  the 
limitation  was  good ;  for  where  it  was  objected  that  when  a 
man  hath  two  estates  in  him,  the  greater  shall  drown  the 
less,  and  that  an  estate  for  his  own  life  is  higher  than  for 
the  fife  of  another ;  and  therefore  an  estate  for  his  own  life, 
and  for  the  lives  of  others,  cannot  stand  together — to  that 
it  was  answered  and  resolved,  that  in  the  case  at  bar,  the 
lessee  had  but  one  estate,  which  hath  this  limitation,  scil. 
during  his  life,  and  the  lives  of  two  others,  and  he  hath  but 
one  freehold,  and  therefore  there  cannot  be  any  drowning 
of  estates  in  the  case,  but  he  hath  an  estate  of  freehold  to 
continue  during  these  three  lives,  and  the  survivor  of  them. 
— Rosse' s  Case  (1598). 


ESTATES    FOR    LIFE.  257 

BL.  COM.,  120-123.  We  are  next  to  discourse  of  such 
estates  of  freehold  as  are  not  of  inheritance,  but  for  life 
only.  And  of  these  estates  for  life,  some  are  conventional, 
or  expressly  created  by  the  act  of  the  parties ;  others  merely 
legal,  or  created  by  construction  and  operation  of  law.  We 
will  consider  them  both  in  their  order. 

Estates  for  life,  expressly  created  by  deed  or  grant  (which 
alone  are  properly  conventional),  are  where  a  lease  is  made 
of  lands  or  tenements  to  a  man,  to  hold  for  the  term  of  his 
own  life,  or  for  that  of  any  other  person,  or  for  more  lives 
than  one :  in  any  of  which  cases  he  is  styled  tenant  for  life ; 
only  when  he  holds  the  estate  by  the  life  of  another,  he  is 
usually  called  tenant  pur  outer  vie.  These  estates  for  life 
are,  like  inheritances,  of  feodal  nature ;  and  were,  for  some 
time,  the  highest  estate  that  any  man  could  have  in  a  feud, 
which  (as  we  have  before  seen)  was  not  in  its  original  her- 
editary. They  are  given  or  conferred  by  the  same  feodal 
rights  and  solemnities,  the  same  investiture  or  livery  of 
seisin,  as  fees  themselves  are ;  and  they  are  held  by  fealty, 
if  demanded,  and  such  conventional  rents  and  services 
as  the  lord  or  lessor,  and  his  tenant  or  lessee,  have  agreed 
on. 

Estates  for  life  may  be  created,  not  only  by  the  express 
words  before  mentioned,  but  also  by  a  general  grant,  with- 
out defining  or  limiting  any  specific  estate.  As,  if  one 
grants  to  A.  B.  the  manor  of  Dale,  this  makes  him  tenant 
for  life.  For  though,  as  there  are  no  words  of  inheritance 
or  heirs  mentioned  in  the  grant,  it  cannot  be  construed  to  be 
a  fee,  it  shall,  however,  be  construed  to  be  as  large  an  estate 
as  the  words  of  the  donation  will  bear,  and  therefore  an 
estate  for  life.  Also  such  a  grant  at  large,  or  a  grant  for  a 
term  of  life  generally,  shall  be  construed  to  be  an  estate  for 
the  life  of  the  grantee;  in  case  the  grantor  hath  authority  to 
make  such  grant :  for  an  estate  for  a  man's  own  life  is  more 
beneficial  and  of  a  higher  nature  than  for  any  other  life : 
and  the  rule  of  law  is,  that  all  grants  are  to  be  taken  most 
strongly  against  the  grantor,  unless  in  the  case  of  the  king. 


258   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

Such  estates  for  life  will,  generally  speaking,  endure  as 
long  as  the  life  for  which  they  are  granted;  but  there  are 
some  estates  for  life,  which  may  determine  upon  future  con- 
tingencies, before  the  life,  for  which  they  are  created,  ex- 
pires. As,  if  an  estate  be  granted  to  a  woman  during  her 
widowhood,  or  to  a  man  until  he  be  promoted  to  a  benefice ; 
in  these,  and  similar  cases,  whenever  the  contingency  hap- 
pens, when  the  widow  marries,  or  when  the  grantee  obtains 
a  benefice,  the  respective  estates  are  absolutely  determined 
and  gone.  Yet  while  they  subsist,  they  are  reckoned  estates 
for  life ;  because,  the  time  for  which  they  will  endure  being 
uncertain,  they  may  by  possibility  last  for  life,  if  the  con- 
tingencies upon  which  they  are  to  determine  do  not  sooner 
happen.  And  moreover,  in  case  an  estate  be  granted  to  a 
man  for  his  life,  generally,  it  may  also  determine  by  his  civil 
death :  as  if  he  enters  into  a  monastery,  whereby  he  is  dead 
in  law,  for  which  reason  in  conveyances  the  grant  is  usually 
made  "  for  the  term  of  a  man's  natural  life ;"  which  can  only 
determine  by  his  natural  death. 

The  incidents  to  an  estate  for  life  are  principally  the  fol- 
lowing ;  which  are  applicable  not  only  to  that  species  of  ten- 
ants for  life,  which  are  expressly  created  by  deed ;  but  also 
to  those  which  are  created  by  act  and  operation  of  law. 

1.  Every  tenant  for  life,  unless  restrained  by  covenant  or 
agreement,  may  of  common  right  take  upon  the  land  de- 
mised to  him  reasonable  estovers  or  botes.     For  he  hath  a 
right  to  the  full  enjoyment  and  use  of  the  land,  and  all  its 
profits  during  his  estate  therein.    But  he  is  not  permitted  to 
cut  down  timber,  or  to  do  other  waste  upon  the  premises; 
for  the  destruction  of  such  things  as  are  not  the  temporary 
profits  of  the  tenement,  is  not  necessary  for  the  tenant's 
complete  enjoyment  of  his  estate;  but  tends  to  the  per- 
manent and  lasting  loss  of  the  person  entitled  to  the  inheri- 
tance. 

2.  Tenant  for  life,  or  his  representatives,  shall  not  be  prej- 
udiced by  any  sudden  determination  of  his  estate,  because 
such  a  determination  is  contingent  and  uncertain.  Therefore, 


ESTATES    FOR    LIFE.  259 

if  a  tenant  for  his  own  life  sows  the  lands  and  dies  before 
harvest,  his  executors  shall  have  the  emblernents  or  profits  of 
the  crop :  for  the  estate  was  determined  by  the  act  of  God, 
and  it  is  a  maxim  in  the  law,  that  actus  Dei  nemini  facit  in- 
juriam.  The  representatives,  therefore,  of  the  tenant  for 
life  shall  have  the  emblernents  to  compensate  for  the  labor 
and  expense  of  tilling,  manuring,  and  sowing  the  lands ;  and 
also  for  the  encouragement  of  husbandry,  which,  being  a 
public  benefit,  tending  to  the  increase  and  plenty  of  pro- 
visions, ought  to  have  the  utmost  security  and  privilege  that 
the  law  can  give  it.  Wherefore  by  the  feodal  law,  if  a  ten- 
ant for  life  died  between  the  beginning  of  September  and 
the  end  of  February,  the  lord,  who  was  entitled  to  the  rever- 
sion, was  also  entitled  to  the  profits  of  the  whole  year ;  but  if 
he  died  between  the  beginning  of  March  and  the  end  of 
August  the  heirs  of  the  tenant  received  the  whole.  From 
hence  our  law  of  emblernents  seems  to  have  been  derived, 
but  with  very  considerable  improvements.  So  it  is  also,  if  a 
man  be  tenant  for  the  life  of  another,  and  cestuy  que  vie, 
or  he  on  whose  life  the  land  is  held,  dies  after  the  corn  sown, 
the  tenant  pur  autcr  vie  shall  have  the  emblernents.  The 
same  is  also  the  rule,  if  a  life-estate  be  determined  by  the  act 
of  law.  Therefore  if  a  lease  be  made  to  husband  and  wife 
during  coverture  (which  gives  them  a  determinable  estate 
for  life),  and  the.  husband  sows  the  land,  and  afterward 
they  are  divorced  a  vinculo  matrimonii,  the  husband  shall 
have  the  emblernents  in  this  case ;  for  the  sentence  of  divorce 
is  the  act  of  law.  But  if  an  estate  for  life  be  determined  by 
the  tenant's  own  act  (as,  by  forfeiture  for  waste  committed; 
or,  if  a  tenant  during  widowhood  thinks  proper  to  marry), 
in  these,  and  similar  cases,  the  tenants,  having  thus  deter- 
mined the  estate  by  their  own  acts,  shall  not  be  entitled  to 
take  the  emblernents.  The  doctrine  of  emblernents  extends 
not  only  to  corn  sown,  but  to  roots  planted,  or  other  annual 
artificial  profit,  but  it  is  otherwise  of  fruit-trees,  grass,  and 
the  like ;  which  are  not  planted  annually  at  the  expense  and 
labor  of  the  tenant,  but  are  either  a  permanent  or  natural 


26O   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

profit  of  the  earth.  For  when  a  man  plants  a  tree  he  cannot 
be  presumed  to  plant  it  in  contemplation  of  any  present 
profit ;  but  merely  with  a  prospect  of  its  being  useful  to  him- 
self in  future,  and  to  future  successions  of  tenants.  The 
advantages  also  of  emblements  are  particularly  extended  to 
the  parochial  clergy  by  the  statute  28  Hen.  VIII.  c.  1 1.  For 
all  persons,  who  are  presented  to  any  ecclesiastical  benefice, 
or  to  any  civil  office,  are  considered  as  tenants  for  their  own 
lives,  unless  the  contrary  be  expressed  in  the  form  of  dona- 
tion. 

LEAKE,  LAND  LAW,  194.  The  case  of  general  occupancy, 
where  there  is  no  limitation  to  a  special  occupant,  is  now 
supplied  by  statute.  By  the  Wills  Act,  i  Viet.  c.  26  (re- 
pealing but  substantially  re-enacting  the  statutes  29  Car.  II. 
c.  3,  s.  12,  and  14  Geo.  II.,  c.  20,  which  previously  en- 
acted to  nearly  the  same  effect),  the  general  power  of  dis- 
position by  will  thereby  given  is  expressly  extended  ''to 
estates  pur  autre  vie,  whether  there  shall  or  shall  not  be  any 
special  occupant  thereof"  (sec.  3).  And  it  is  enacted 
by  sec.  6,  "  that  in  case  there  shall  be  no  special  occupant 
of  any  estate  pur  autre  vie,  whether  freehold  or  customary 
freehold,  tenant  right,  customary  or  copyhold,  or  of  any 
other  tenure,  and  whether  a  corporeal  or  incorporeal  here- 
ditament, it  shall  go  to  the  executor  or  the  administrator  of 
the  party  that  had  the  estate  thereof  by  virtue  of  the  grant ; 
and  if  the  same  shall  come  to  the  executor  or  administrator 
either  by  reason  of  a  special  occupancy  or  by  virtue  of  this 
act,  it  shall  be  assets  in  his  hands,  and  shall  go  and  be  ap- 
plied and  distributed  in  the  same  manner  as  the  personal 
estate  of  the  testator  or  intestate." 

ID.,  219.  An  estate  for  life  may  be  made  determinable 
by  a  conditional  limitation;  as,  if  an  estate  be  granted  to 
a  woman  so  long  as  she  is  unmarried,  or  until  marriage,  or 
during  widowhood;  or  to  a  husband  and  wife  during  the 
coverture ;  or  so  long  as  the  grantee  shall  dwell  in  a  certain 
house,  or  until  the  grantee  be  promoted  to  a  benefice,  or  for 


ESTATES    FOR    LIFE.  26 1 

any  like  uncertain  duration  included  in  the  life.  Such  limita- 
tions create  estates  for  life,  which  are  liable  to  determine 
and  cease  by  the  event  happening  according  to  the  condition 
during  the  life;  the  next  vested  estate  in  remainder  then 
takes  effect  in  possession,  and  intervening  contingent  re- 
mainders, if  there  be  any,  are  excluded. 

An  estate  for  life  may  be  limited  to  determine  on  aliena- 
tion ;  or  upon  charging  or  attempting  to  charge  the  estate,  or 
the  rents  and  profits ;  so  it  may  be  limited  to  cease  upon 
bankruptcy  or  insolvency.  Conditions  in  restraint  of  aliena- 
tion cannot  be  annexed  to  an  estate  tail  or  an  estate  in  fee, 
simple,  and  in  such  cases  they  are  void  and  inoperative  as 
being  repugnant  to  an  inseparable  incident  of  the  estate. 

WILLIAMS,  REAL  PROP.  (i7th  ed.),  130.  A  tenant  for 
life  may  grant  over  the  land  he  holds  for  so  long  as  he  shall 
live ;  but  he  could  not  by  the  common  law  make  any  lawful 
disposition  to  endure  for  a  longer  period.  And  his  common- 
law  right  of  alienation  is  still  all  that  he  can  exercise  for  his 
own  exclusive  profit.  But  at  the  present  day  a  tenant  for 
life  has  large  powers  of  disposing  of  the  land  he  holds,  for 
the  benefit  of  those  entitled  thereto  after  his  death,  as  well 
as  himself.  Powers  are  means  of  conveying  land  inde- 
pendently of  the  right  of  alienation  incident  to  the  estate  in 
the  land.  Under  the  modern  system  of  settling  land  on  one 
for  life,  and  then  on  his  sons  successively  in  tail,  no  valid 
disposition  of  the  land  could  be  made  .by  virtue  of  the  estates 
so  created,  except  for  the  father's  lifetime,  until  a  son  at- 
tained twenty-one ;  when  he  could  join  in  barring  the  entail. 
This  was  obviously  inconvenient ;  and  it  therefore  became 
usual  to  give  to  the  tenant  for  life  under  a  settlement  powers 
of  leasing  the  settled  land  for  certain  terms  on  specified  con- 
ditions; and  leases  granted  under  such  powers  remained 
good  after  death,  for  the  benefit  of  his  successors  under  the 
settlement.  .  .  . 

.  .  .  But  now  the  Settled  Land  Act,  1882,  gives  to- 
every  tenant  for  life  in  possession  of  land  under  a  settle- 


262   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

ment  large  powers  of  leasing  and  also  a  power  of  selling  or 
exchanging  the  settled  land.  Since  these  extensive  statu- 
tory powers  have  been  conferred  on  a  tenant  for  life,  it  has 
been  no  longer  usual  to  insert  in  settlements  the  old  express 
powers  of  appointment,  which  were  formerly  used  to  effect 
the  same  objects. 

4  KENT  COM.,  27.  In  New  York  an  estate  pur  autre  vie, 
whether  limited  to  heirs  or  otherwise,  is  deemed  a  freehold 
only  during  the  life  of  the  grantee  or  devisee,  and  after  his 
•death  it  is  deemed  a  chattel  real.  The  interest  of  every  oc- 
cupant, general  or  special,  is,  therefore,  in  New  York, 
totally  annihilated ;  but  the  statute  provisions  in  other  States 
vary  considerably  upon  this  subject.  In  New  Jersey,  the 
act  of  1795  is  the  same  as  that  in  New  York ;  but  the  Vir- 
.ginia  statute  of  1792  follows  in  the  footsteps  of  the  English 
statute,  and  leaves  a  scintilla  of  interest,  in  certain  events, 
in  the  heir  as  a  special  occupant ;  and  this  I  apprehend  to  be 
the  construction  of  the  statute  in  Maryland  of  1799.  In 
Massachusetts,  on  the  death  of  the  tenant  pur  autre  fie,  the 
law  is  said  to  give  the  estate  to  his  heir ;  and  yet,  in  that  and 
<5ther  States,  where  the  real  and  personal  estates  of  in- 
testates are  distributed  in  the  same  way  and  manner,  the 
question  does  not  seem  to  be  material. 

N.  Y.  REAL  PROP.  LAW,  §  24.  An  estate  for  the  life  of 
a  third  person,  whether  limited  to  heirs  or  otherwise,  shall 
be  deemed  a  freehold  only  during  the  life  of  the  grantee  or 
-devisee ;  after  his  death  it  shall  be  deemed  a  chattel  real. 

§210.  .  .  .  A  greater  estate  or  interest  does  not 
pass  by  any  grant  or  conveyance  than  the  grantor  possessed 
or  could  lawfully  convey  at  the  time  of  the  delivery  of  the 
.deed.  .  .  . 

§  212.  A  conveyance  made  by  a  tenant  for  life  or 
years,  of  a  greater  estate  than  he  possesses,  or  can  lawfully 
convey,  does  not  work  a  forfeiture  of  his  estate,  but  passes 
to  the  grantee  all  the  title,  estate  or  interest  which  such  ten- 
ant can  lawfully  convey. 


ESTATES    FOR   LIFE.  263 

MASS.  PUB.  STAT.,  c.  125,  §  i.  When  a  person  dies 
seised  of  land,  tenements,  or  hereditaments,  or  of  any  right 
thereto,  or  entitled  to  any  interest  therein,  in  fee  simple  or 
for  the  life  of  another,  not  having  lawfully  devised  the 
same,  they  shall  descend,  subject  to  his  debts  and  to  the 
rights  of  the  husband  or  wife  and  minor  children  of  the  de- 
ceased, as  provided  in  the  two  preceding  chapters. 

(&)  Legal  Life  Estates. 
( i )   CURTESY. 

LIT.,  §  35.  Tenant  by  the  curtesie  of  England  is,  where 
a  man  taketh  a  wife  seised-  in  fee  simple  or  in  fee 
taile  generall,  or  seised  as  heir  in  taile  especiall,  and  hath 
issue  by  the  same  wife,  male  or  female,  borne  alive,  albeit 
the  issue  after  dieth  or  liveth,  yet  if  the  wife  dies,  the  hus- 
band shall  hold  the  land  during  his  life  by  the  law  of  Eng- 
land. And  he  is  called  tenant  by  the  curtesie  of  England, 
because  this  is  used  in  no  other  realme  but  in  England 
onely. 

And  some  have  said  that  he  shall  not  be  tenant  by  the 
curtesie  unlesse  the  childe,  which  he  hath  by  his  wife,  be 
heard  crie;  for  by  the  crie  it  is  proved  that  the  child  was 
borne  alive.  Therefore  Qucere. 

Co.  LIT.,  29,  a.  And  first,  of  what  seisin  a  man  shall  be 
tenant  by  the  curtesie.  There  is  in  law  a  twofold  seisin, 
viz.,  a  seisin  in  deed,  and  a  seisin  in  law,  whereof  more  shall 
be  said,  sees.  468  and  68 1.  And  here  Littleton  intendeth  a 
seisin  in  deed,  if  it  may  be  attained  unto.  As  if  a  man  dieth 
seised  of  lands  in  fee  simple  or  fee  taile  generall,  and  these 
lands  descend  to  his  daughter,  and  she  taketh  a  husband  and 
hath  issue,  and  dyeth  before  any  entry,  the  husband  shall 
not  be  tenant  by  the  curtesie,  and  yet  in  this  case  she  had  a 
seisin  in  law ;  but  if  she  or  her  husband  had  during  her  life 
Cntred,  he  should  have  been  tenant  by  the  curtesie.  A  man 
seised  of  an  advowson  or  rent  in  fee  hath  issue  a  daughter, 


264   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

who  is  married,  and  hath  issue,  and  dyeth  seised,  the  wife, 
before  the  rent  became  due  or  the  church  became  voyd, 
dieth,  she  had  but  a  seisin  in  law,  and  yet  he  shall  be  tenant 
by  the  curtesie,  because  he  could  by  no  industry  attaine  to 
any  seisin.  Et  impotentia  excusat  legem.  But  a  man  shall 
not  be  tenant  by  the  curtesie  of  a  bare  right,  title,  use  or  cf 
a  reversion  or  remainder  expectant  upon  any  estate  of  free- 
hold, unlesse  the  particular  estate  be  determined  or  ended 
during  the  coverture. 

29,  b.     If  lands  be  given  to  a  woman  and  to  the  heires 
males  of  her  body,  she  taketh  a  husband  and  she  hath  issue  a 
daughter  and  dieth,  he  shall  not  be  tenant  by  the  curtesie ; 
because  the  daughter  by  no  possibilitie  could  inherite  the 
mother's  estate  in  the  land ;  and  therefore  where  Littleton 
saith,  issue  by  his  wife,  male  or  female,  it  is  to  be  under- 
stood, which  by  possibility  may  inherit  as  heir  to  her  mother 
of  such  estate.     .     .     . 

If  a  man  seised  of  lands  in  fee  hath  issue  a  daughter, 
who  taketh  husband  and  hath  issue,  the  father  dieth,  the 
husband  enters,  he  shall  be  tenant  by  the  curtesie,  albeit  the 
issue  was  had  before  the  wife  was  seised.  And  so  it  is, 
albeit  the  issue  had  dyed  in  the  lifetime  of  her  father 
before  any  descent  of  the  land,  yet  shall  he  be  tenant  by 
the  curtesie.  If  a  woman  seised  of  lands  in  fee  taketh  hus- 
band, and  by  him  is  bigge  with  childe,  and  in  her  travell 
dieth,  and  the  childe  is  ripped  out  of  her  body  alive,  yet 
shall  he  not  be  tenant  by  the  curtesie,  because  the  childe 
was  not  borne  during  the  marriage,  nor  in  the  life  of 
the  wife,  but  in  the  meane  time  her  land  descended,  and  in 
pleading  he  must  alledge  that  he  had  issue  during  the 
marriage. 

30,  a.    Foure  things  doe  belong  to  an  estate  of  tenancy  by 
the  curtesie,  viz.,  marriage,  seisin  of  the  wife,  issue,  and 
death  of  the  wife.    But  it  is  not  requisite  that  these  should 
concurre  together  all  at  one  time.    And  therefore,  if  a  man 
taketh  a  woman  seised  of  lands  in  fee,  and  is  disseised,  and 
then  have  issue,  and  the  wife  die,  he  shall  enter  and  hold  by 


ESTATES    FOR    LIFE.  265 

the  curtesie.  So  if  he  hath  issue  which  dieth  before  the  de- 
scent, as  is  aforesaid.  And  albeit  the  estate  be  not  consum- 
mate untill  the  death  of  the  wife,  yet  the  state  hath  such  a 
beginning  after  issue  had  in  the  life  of  the  wife  as  is  re- 
spected in  law  for  divers  purposes. 

LIT.,  §  52.  And  memorandum,  that  in  every  case  where 
a  man  taketh  a  wife  seised  of  such  an  estate  of  tene- 
ments, &c.,  as  the  issue,  which  he  hath  by  his  wife,  may  by 
possibility  inherit  the  same  tenements  of  such  an  estate  as 
the  wife  hath,  as  heire  to  the  wife;  in  this  case,  after  the 
decease  of  the  wife,  he  shall  have  the  same  tenements  by 
the  curtesie  of  England,  but  otherwise  not. 

Co.  LIT.,  40,  a.  ...  If  a  man  taketh  a  wife  seised  of 
lands  or  tenements  in  fee,  and  hath  issue,  and  after  the  wife 
is  attainted  of  felony  so  as  the  issue  cannot  inherit  to  her,  yet 
he  shall  be  tenant  by  the  curtesie,  in  respect  of  the  issue 
which  he  had  before  the  felonie,  and  which  by  possibilitie 
might  then  have  inherited.  But  if  the  wife  had  been  at- 
tainted of  felonie  before  the  issue,  albeit  he  had  issue  after- 
ward, he  shall  not  be  tenant  by  the  curtesie. 

2  BL.  COM.,  126-128.  Tenant  by  the  curtesy  of  England 
is  where  a  man  marries  a  woman  seised  of  an  estate  of  in- 
heritance, that  is,  of  lands  and  tenements  in  fee-simple  or 
fee-tail,  and  has  by  her  issue,  born  alive,  which  was  capable 
of  inheriting  her  estate.  In  this  case  he  shall,  on  the  death 
of  his  wife,  hold  the  lands  for  his  life,  as  tenant  by  the 
curtesy  of  England. 

This  estate,  according  to  Littleton,  has  its  denomination, 
because  it  is  used  within  the  realm  of  England  only ;  and  it 
is  said  in  the  Mirrour  to  have  been  introduced  by  King 
Henry  the  First ;  but  it  appears  also  to  have  been  the  estab- 
lished law  of  Scotland,  wherein  it  was  called  curialitas,  so 
that  probably  our  word  curtesy  was  understood  to  signify 
rather  an  attendance  upon  the  lord's  court  or  curtis  (that  is, 


266   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

being  his  vassal  or  tenant),  than  to  denote  any  peculiar 
favor  belonging  to  this  island.1  And  therefore  it  is  laid 
down2  that  by  having  issue  the  husband  shall  be  entitled  to 
do  homage  to  the  lord,  for  the  wife's  lands,  alone,  whereas, 
before  issue  had,  they  must  both  have  done  it  together.  It 
is  likewise  used  in  Ireland,  by  virtue  of  an  ordinance  of  King 
Henry  III.  It  also  appears  to  have  obtained  in  Normandy ; 
and  was  likewise  used  among  the  ancient  Almains  or  Ger- 
mans. And  yet  it  is  not  generally  apprehended  to  have  been 
a  consequence  of  feodal  tenure,  though  I  think  some  sub- 
stantial feodal  reasons  may  be  given  for  its  introduction. 
For  if  a  woman  seised  of  lands  hath  issue  by  her  husband 
and  dies,  the  husband  is  the  natural  guardian  of  the  child, 
and  as  such  is  in  reason  entitled  to  the  profits  of  the  lands 
in  order  to  maintain  it;  for  which  reason  the  heir-apparent 
of  a  tenant  by  the  curtesy  could  not  be  in  ward  to  the  lord 
of  the  fee  during  the  life  of  such  tenant.  As  soon  therefore 
as  any  child  was  born  the  father  began  to  have  a  permanent 
interest  in  the  lands,  he  became  one  of  the  pares  curtis,  did 
homage  to  the  lord,  and  was  called  tenant  by  the  curtesy 
initiate;  and  this  estate,  being  once  vested  in  him  by  the 
birth  of  the  child,  was  not  suffered  to  determine  by  the  sub- 
sequent death  or  coming  of  age  of  the  infant. 

There  are  four  requisites  necessary  to  make  a  tenancy  by 
the  curtesy :  marriage,  seisin  of  the  wife,  issue,  and  death 
of  the  wife.  i.  The  marriage  must  be  canonical  and  legal. 
2.  The  seisin  of  the  wife  must  be  an  actual  seisin,  or  pos- 
session of  the  lands ;  not  a  bare  right  to  possess,  which  is  a 
seisin  in  law,  but  an  actual  possession,  which  is  a  seisin  in 
deed.  And  therefore  a  man  shall  not  be  tenant  by  the 
curtesy  of  a  remainder  or  reversion.  3.  The  issue  must  be 

1 1  should  rather  think,  with  Mr.  Wooddesson,  that  this  estate  took  its 
name  from  its  peculiarity  to  England,  and  that  it  was  afterwards  intro- 
duced into  Scotland  and  Ireland.  2  Woodd.  18.  Tenant  by  the  curtesy 
of  England  perhaps  originally  signified  nothing  more  than  tenant  by  the 
courts  of  England,  as  in  Latin  he  is  called  tenens per  legem  Angliae.  See 
Stat.  pro  tenentibus per  legem  Anglice.  App.  to  Ruff.  29. — Chitty. 

'  Litt.,  §  90.     Co.  Litt.,  30,  67. 


ESTATES    FOR    LIFE.  267 

born  alive.  Some  have  had  a  notion  that  it  must  be  heard  to 
cry;  but  that  is  a  mistake.  Crying  indeed  is  the  strongest 
evidence  of  its  being  born  alive ;  but  it  is  not  the  only  evi- 
dence. The  issue  also  must  be  born  during  the  life  of  the 
mother,  for  if  the  mother  dies  in  labor,  and  the  Csesarean  op- 
eration is  performed,  the  husband  in  this  case  shall  not  be 
tenant  by  the  curtesy ;  because  at  the  instant  of  the  mother's 
death  he  was  clearly  not  entitled,  as  having  had  no  issue 
born,  but  the  land  descended  to  the  child  while  he  was 
yet  in  his  mother's  womb;  and  the  estate,  being  once  so 
vested,  shall  not  afterwards  be  taken  from  him.  In  gavel- 
kind  lands,  a  husband  may  be  tenant  by  the  curtesy, 
without  having  any  issue.  But  in  general  there  must  be 
issue  born;  and  such  issue  as  is  also  capable  of  inherit- 
ing the  mother's  estate.  Therefore,  if  a  woman  be 
tenant  in  tail  male,  and  hath  only  a  daughter  born,  the 
husband  is  not  thereby  entitled  to  be  tenant  by  the 
curtesy;  because  such  issue  female  can  never  inherit  the 
estate  in  tail  male.  And  this  seems  to  be  the  principal 
reason  why  the  husband  cannot  be  tenant  by  the  curtesy  of 
any  lands  of  which  the  wife  was  not  actually  seised;  be- 
cause, in  order  to  entitle  himself  to  such  estate,  he  must 
have  begotten  issue  that  may  be  heir  to  the  wife;  but  no 
one,  by  the  standing  rule  of  law,  can  be  heir  to  the  ancestor 
of  any  land,  whereof  the  ancestor  was  not  actually  seised; 
and  therefore  as  the  husband  hath  never  begotten  any  issue 
that  can  be  heir  to  those  lands,  he  shall  not  be  tenant  of 
them  by  the  curtesy.  And  hence  we  may  observe  with  how 
much  nicety  and  consideration  the  old  rules  of  law  were 
framed ;  and  how  closely  they  are  connected  and  interwoven 
together,  supporting,  illustrating,  and  demonstrating  one 
another.  The  time  when  the  issue  was  born  is  immaterial, 
provided  it  were  during  the  coverture ;  for,  whether  it  were 
before  or  after  the  wife's  seisin  of  the  lands,  whether  it  be 
living  or  dead  at  the  time  of  the  seisin,  or  at  the  time  of  the 
wife's  decease,  the  husband  shall  be  tenant  by  the  curtesy. 
The  husband  by  the  birth  of  the  child  becomes  (as  was  be- 


268   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

fore  observed)  tenant  by  the  curtesy  initiate,  and  may  do 
many  acts  to  charge  the  lands,  but  his  estate  is  not  consum- 
mate till  the  death  of  the  wife ;  which  is  the  fourth  and  last 
requisite  to  make  a  complete  tenant  by  the  curtesy. 

• 

WILLIAMS,  REAL  PROP,  (i/th  ed.),  359.  Equity  also  fol- 
lowed the  law  in  giving  to  the  husband  the  right  to  enjoy 
his  wife's  equitable  estate  of  inheritance  after  her  death  for 
the  rest  of  his  own  life,  as  tenant  by  the  curtesy  in  equity, 
under  circumstances  similar  to  those  which  gave  rise  to  a 
tenancy  by  the  curtesy  at  law. 

ID.,  376.  Wherever  tenancy  by  the  curtesy  is  recognized, 
the  rules  governing  it  do  not  differ  materially  from  those 
stated  in  the  text.  In  Virginia  (Code  of  1887,  sec.  2429) 
and  West  Virginia  (Code  of  1891,  p.  635,  sec.  17),  tenancy 
by  the  curtesy  is  expressly  declared  to  exist  in  trust  estates ; 
but  it  is  well  settled  that,  in  the  absence  of  statute,  curtesy 
attaches  to  equitable  as  well  as  to  legal  estates.  .  .  .  There 
has  been  some  question  as  to  the  husband's  right  to  curtesy 
in  a  determinable  fee.  The  better  opinion  is  that  in  a  case 
of  an  estate  upon  condition  or  limitation,  the  happening  of 
the  event  which  determines  the  estate  and  causes  it  to  revert 
to  the  grantor,  will  also  defeat  the  husband's  curtesy.  But 
if  the  wife's  estate  is  a  conditional  limitation  which  operates 
by  the  way  of  executory  devise  or  shifting  use  and  could 
not  exist  at  common  law,  his  curtesy  right  will  not  be  affected 
by  the  happening  of  the  contingency.  .  .  .  The  husband 
cannot,  however,  become  a  tenant  by  the  curtesy  in  a  rever- 
sion or  remainder  expectant  upon  a  life  estate,  unless  such 
life  estate  terminates  during  coverture.  .  .  .  Hutchins' 
note. 

(2)  DOWER. 

LIT.,  §  36.  Tenant  in  dower  is,  where  a  man  seised  of 
certaine  lands  or  tenements  in  fee  simple,  fee  taile  gen- 
erall,  or  as  heire  in  speciall  taile,  and  taketh  a  wife,  and 


ESTATES    FOR    LIFE.  269 

dieth,  the  wife  after  the  decease  of  her  husband  shall  be  en- 
dowed of  the  third  part  of  such  lands  and  tenements  as  were 
her  husband's  at  any  time  during  the  coverture,  to  have  and 
to  hold  to  the  same  wife  in  severalty  by  metes  and  bounds 
for  terme  of  her  life,  whether  she  hath  issue  by  her  husband 
or  no,  and  of  what  age  soever  the  wife  be,  so  as  she  be  past 
the  age  of  nine  yeares  at  the  time  of  the  death  of  her  hus- 
band, for  she  must  be  above  nine  yeares  old  at  the  time  of 
the  decease  of  her  husband,  otherwise  she  shall  not  be 
endowed. 

§  37.  And  note,  that  by  the  common  law  the  wife  shall 
have  for  her  dower  but  the  third  part  of  the  tenements 
which  were  her  husband's  during  the  espousals ;  but  by  the 
custome  of  some  county,  she  shall  have  the  halfe,  and  by  the 
custome  in  some  towne  or  borough,  she  shall  have  the 
whole ;  and  in  all  these  cases  she  shall  be  called  tenant  in 
dower. 

§  38.  Also,  there  be  two  other  kinds  of  dower,  viz.,  dower 
which  is  called  dowment  at  the  church  doore,  and  dower 
called  dowment  by  the  father's  assent. 

§  39.  Dowment  at  the  church  doore  is,  where  a  man  of 
full  age  seised  in  fee  simple  who  shall  be  married  to  a 
woman,  and  when  he  commeth  to  the  church  doore  to  be 
married,  there,  after  affiance  and  troth  plighted  betweene 
them,  he  endoweth  the  woman  of  his  whole  land  or  of  the 
halfe,  or  other  lesser  part  thereof,  and  there  openly  doth 
declare  the  quantity  and  the  certainty  of  the  land  which  she 
shall  have  for  her  dower.  In  this  case  the  wife,  after  the 
death  of  the  husband,  may  enter  into  the  said  quantity  of 
land  of  which  her  husband  endowed  her,  without  other  as- 
signment of  any. 

§  40.  Dowment  by  assent  of  the  father  is,  where  the 
father  is  seised  of  tenements  in  fee,  and  his  sonne  and  heire 
apparent,  when  he  is  married,  endoweth  his  wife  at  the 
monastery  or  church  doore,  of  parcel  of  his  father's  lands  or 
tenements  with  the  assent  of  his  father,  and  assignes  the 
quantity  and  parcels.  In  this  case  after  the  death  of  the  son, 


27O   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

the  wife  shall  enter  into  the  same  parcell  without  the  as- 
signement  of  any.  But  it  hath  been  sayd  in  this  case,  that 
it  behooveth  the  wife  to  have  a  deed  of  the  father  to  proove 
his  assent  and  consent  to  this  endowment.  M.  44,  E.  3, 

f.45- 

§  41.  And  if  after  the  death  of  her  husband  she  entreth, 
and  agree  to  any  such  dower  of  the  said  dowers  at 
the  church  doore,  &c.,  then  she  is  concluded  to  claim 
any  other  dower  by  the  common  law  of  any  the  lands  or 
tenements  which  were  her  husband's.  But  if  she  will,  she 
may  refuse  such  dower  at  the  church  doore,  &c.,  and 
then  she  may  be  endowed  after  the  course  of  the  common 
law. 

§  53.  And  also,  in  every  case  where  a  woman  taketh 
a  husband  seised  of  such  an  estate  in  tenements,  &c.,  so  as 
by  possibilitie  it  may  happen  that  the  wife  may  have  issue 
by  her  husband,  and  that  the  same  issue  may  by  possibilitie 
inherit  the  same  tenements  of  such  an  estate  as  the  husband 
hath,  as  heire  to  the  husband,  of  such  tenements  she  shall 
have  her  dower,  and  otherwise  not.  For  if  tenements  be 
given  to  a  man,  and  to  the  heires  which  he  shall  beget  of  the 
bodie  of  his  wife,  in  this  case  the  wife  hath  nothing  in  the 
tenements,  and  the  husband  hath  an  estate  but  as  donee  in 
special  taile.  Yet  if  the  husband  die  without  issue,  the  same 
wife  shall  be  endowed  of  the  same  tenements ;  because  the 
issue,  which  she  by  possibility  might  have  had  by  the  same 
husband,  might  have  inherited  the  same  tenements.  But  if 
the  wife  dyeth,  living  her  husband,  and  after  the  husband 
takes  another  wife,  and  dieth,  his  2.  wife  shall  not  be  en- 
dowed in  this  case,  for  the  reason  aforesaid. 

Co.  LIT.,  31,  a.  Here  this  word  (seised)  extendeth  itself e 
as  well  to  a  seisin  in  law,  or  a  civill  seisin,  as  to  a  seisin  in 
deed,  which  is  a  naturall  seisin :  but  seised  he  must  be  either 
the  one  way  or  the  other  during  the  coverture.  For  a 
woman  shall  be  endowed  of  a  seisin  in  law.  As  where  lands 
or  tenements  descend  to  the  husband,  before  entry  he  hath 


ESTATES    FOR    LIFE.  271 

but  a  seisin  in  law,  and  yet  the  wife  shall  be  endowed,  albeit 
it  be  not  reduced  to  an  actuall  possession,  for  it  lieth  not  in 
the  power  of  the  wife  to  bring  it  to  an  actuall  seisin,  as  the 
husband  may  do  of  his  wife's  land,  when  he  is  to  be  tenant 
by  curtesie,  which  is  worthy  the  observation.  .  .  .  Also 
of  a  seisin  for  an  instant  a  woman  shall  not  be  indowed ;  as 
if  Cestuy  que  use  after  the  statute  of  i  R.  3  and  before  the 
statute  of  27  H.  8  had  made  a  feoffment  in  fee,  his  wife 
should  not  be  indowed. 

ST.  WESTM.  II.  (13  EDW.  I.,  1285),  c.  34.  And  if  a  Wife 
willingly  leave  her  Husband,  and  go  away,  and  con- 
tinue with  "her  Advouterer,  she  shall  be  barred  forever 
of  Action  to  demand  her  Dower,  that  she  ought  to  have  of 
her  Husband's  Lands,  if  she  be  convict  thereupon,  except 
that  her  Husband  willingly,  and  without  Coercion  of  the 
Church,  reconcile  her,  and  suffer  her  to  dwell  with  him ;  in 
which  Case  she  shall  be  restored  to  her  Action. 

2  BL.  COM.,  129-132.  Tenant  in  dower  is  where  the  hus- 
band of  a  woman  is  seised  of  an  estate  of  inheritance,  and 
dies ;  in  this  case  the  wife  shall  have  the  third  part  of  all  the 
lands  and  tenements  whereof  he  was  seised  at  any  time  dur- 
ing the  coverture,  to  hold  to  herself  for  the  term  of  her 
natural  life. 

Dower  is  called  in  Latin  by  the  foreign  jurists  doarium, 
but  by  Bracton  and  our  English  writers  dos:  which  among 
the  Romans  signified  the  marriage  portion  which  the  wife 
brought  to  her  husband;  but  with  us  is  applied  to  signify 
this  kind  of  estate,  to  which  the  civil  law,  in  its  original 
state,  had  nothing  that  bore  a  resemblance :  nor  indeed  is 
there  anything  in  general  more  different  than  the  regula- 
tions of  landed  property  according  to  the  English  and  Ro- 
man laws.  Dower  out  of  the  lands  seems  also  to  have  been 
unknown  in  the  early  part  of  our  Saxon  constitution ;  for  in 
the  laws  of  King  Edmond  the  wife  is  directed  to  be  sup- 
ported wholly  out  of  the  personal  estate.  Afterwards,  as 


272   READINGS  IN  THE  LAW  OF  REAL  PRC 

may  be  seen  in  gavelkind  tenure,  the  widow  became  entitled 
to  a  conditional  estate  in  one  half  of  the  lands,  with  a  pro- 
viso that  she  remained  chaste  and  unmarried,  as  is  usual 
also  in  copyhold  dowers,  or  free  bench.  Yet  some  have 
ascribed  the  introduction  of  dower  to  the  Normans,  as  a 
branch  of  their  local  tenures ;  though  we  cannot  expect  any 
feodal  reason  for  its  invention,  since  it  was  not  a  part  of  the 
pure,  primitive,  simple  law  of  feuds,  but  was  first  of  all 
introduced  into  that  system  (wherein  it  was  called  triens, 
tertia  and  dotalitium}  by  the  Emperor  Frederick  the 
Second,  who  was  contemporary  with  our  King  Henry  III. 
.  .  .  However  this  be,  the  reason  which  our  law  gives 
for  adopting  it  is  a  very  plain  and  sensible  one ;  for  the  sus- 
tenance of  the  wife,  and  the  nurture  and  education  of  the 
younger  children. 

In  treating  of  this  estate,  let  us,  first,  consider  who  may 
be  endowed;  secondly,  of  what  she  may  be  endowed; 
thirdly,  the  manner  how  she  shall  be  endowed ;  and  fourthly, 
how  dower  may  be  barred  or  prevented. 

1.  Who  may  be  endowed.     She  must  be  the  actual  wife 
of  the  party  at  the  time  of  his  decease.    If  she  be  divorced  a 
vinculo  matrimonii,  she  shall  not  be  endowed ;  for  ubi  nul- 
lum  matrimonium,  ibi  nulla  dos.     But  a  divorce  a  mensa  et 
thoro  only,  doth  not  destroy  the  dower;  no,  not  even  for 
adultery  itself  by  the  common  law.    Yet  now  by  the  statute 
West.  2,  if  a  woman  voluntarily  leaves  (which  the  law  calls 
eloping  from)  her  husband,  and  lives  with  an  adulterer,  she 
shall  lose  her  dower,  unless  her  husband  be  voluntarily 
reconciled  to  her.     .     .     . 

2.  We  are  next  to  inquire,  of  what  a  wife  may  be  en- 
dowed.   And  she  is  now  by  law  entitled  to  be  endowed  of  all 
lands  and  tenements,  of  which  her  husband  was  seised  in 
fee-simple  or  fee-tail,  at  any  time  during  the  coverture ;  and 
of  which  any  issue,  which  she  might  have  had,  might  by 
possibility  have  been  heir.     Therefore,  if  a  man  seised  in 
fee-simple  hath  a  son  by  his  first  wife,  and  after  marries  a 
second  wife,  she  shall  be  endowed  of  his  lands ;  for  her  issue 


ESTATES    FOR    LIFE.  273 

might  by  possibility  have  been  heir,  on  the  death  of  the  son 
by  the  former  wife.  But  if  there  be  a  donee  in  special  tail 
who  holds  lands  to  him  and  the  heirs  of  his  body  begotten 
on  Jane  his  wife;  though  Jane  may  be  endowed  of  these 
lands,  yet  if  Jane  dies,  and  he  marries  a  second  wife,  that 
second  wife  shall  never  be  endowed  of  the  lands  entailed; 
for  no  issue  that  she  could  have  could  by  any  possibility  in- 
herit them.  A  seisin  in  law  of  the  husband  will  be  as  effec- 
tual as  a  seisin  in  deed,  in  order  to  render  the  wife  dowable ; 
for  it  is  not  in  the  wife's  power  to  bring  the  husband's  title 
to  an  actual  seisin,  as  it  is  in  the  husband's  power  to  do  with 
regard  to  the  wife's  lands ;  which  is  one  reason  why  he  shall 
not  be  tenant  by  the  courtesy  but  of  such  lands  whereof  the 
wife,  or  he  himself  in  her  right,  was  actually  seised  in  deed. 
The  seisin  of  the-  husband,  for  a  transitory  instant  only, 
when  the  same  act  which  gives  him  the  estate  conveys  it 
also  out  of  him  again  (as  where,  by  a  fine,  land  is  granted 
to  a  man,  and  he  immediately  renders  it  back  by  the  same 
fine),  such  a  seisin  will  not  entitle  the  wife  to  dower ;  for  the 
land  was  merely  in  transitu,  and  never  rested  in  the  hus- 
band, the  grant  and  render  being  one  continued  act.  But, 
if  the  land  abides  in  him  for  the  interval  of  but  a  single 
moment,  it  seems  that  the  wife  shall  be  endowed  thereof. 
And,  in  short,  a  widow  may  be  endowed  of  all  her  husband's 
lands,  tenements,  and  hereditaments,  corporeal  or  incor- 
poreal, under  the  restrictions  before  mentioned ;  unless  there 
be  some  special  reason  to  the  contrary.  .  .  .  Copyhold 
estates  are  also  not  liable  to  dower,  being  only  estates  at  the 
lord's  will;  unless  by  the  special  custom  of  the  manor,  in 
which  case  it  is  usually  called  the  widow's  free  bench.  But 
where  dower  is  allowable,  it  matters  not  though  the  husband 
aliene  the  lands  during  the  coverture;  for  he  alienes  them 
liable  to  dower. 

ID.,  136-138.  4.  Plow  dower  may  be  barred  or  prevented. 
A  widow  may  be  barred  of  her  dower  not  only  by  elopement, 
divorce,  being  an  alien,  the  treason  of  her  husband,  and 
other  disabilities,  .  .  .  but  also  by  detaining  the  title- 


2/4   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

deeds  or  evidences  of  the  estate  from  the  heir,  until 
she  restores  them:  ind,  by  the  statute  of  Gloucester,1  if  a 
dowager  alienes  the  land  assigned  her  for  dower,  she  for- 
feits it  ipso  facto,  and  the  heir  may  recover  it  by  action.  A 
woman  also  may  be  barred  of  her  dower  by  levying  a  fine, 
or  suffering  a  recovery  of  the  lands,  during  her  coverture. 
But  the  most  usual  method  of  barring  dowers  is  by  join- 
tures, as  regulated  by  the  statute  27  Hen.  VIII. ,  c.  10. 

A  jointure,  which,  strictly  speaking,  signifies  a  joint 
estate,  limited  to  both  husband  and  wife,  but  in  common 
acceptation  extends  also  to  a  sole  estate,  limited  to  the  wife 
only,  is  thus  defined  by  Sir  Edward  Coke,  "A  competent 
livelihood  of  freehold  for  the  wife,  of  lands  and  tenements ; 
to  take  effect,  in  profit  or  possession,  presently  after  the 
death  of  the  husband,  for  the  life  of  the  wife  at  least."2 
This  description  is  framed  from  the  purview  of  the  statute 
27  Henry  VIII.  c.  10,  before  mentioned,  commonly  called 
the  Statute  of  Uses.  ...  At  present  I  have  only  to  ob- 
serve, that  before  the  making  of  that  statute,  the  great- 
est part  of  the  land  of  England  was  conveyed  to  uses; 
the  property  or  possession  of  the  soil  being  vested 
in  one  man,  and  the  use,  or  the  profits  thereof,  in  another; 
whose  directions,  with  regard  to  the  disposition  thereof, 
the  former  was  in  conscience  obliged  to  follow,  and 
might  be  compelled  by  a  court  of  equity  to  observe.  Now, 
though  a  husband  had  the  use  of  lands  in  absolute 
fee-simple,  yet  the  wife  was  not  entitled  to  any  dower 
therein ;  he  not  being  seised  thereof :  wherefore  it  became 
usual,  on  marriage,  to  settle  by  express  deed  some  special 
estate  to  the  use  of  the  husband  and  his  wife,  for  their  lives, 
in  joint-tenancy,  or  jointure;  which  settlement  would  be  a 
provision  for  the  wife  in  case  she  survived  her  husband.  At 
length  the  Statute  of  Uses  ordained,  that  such  as  had  the  use 
of  lands  should,  to  all  intents  and  purposes,  be  reputed  and 
taken  to  be  absolutely  seised  and  possessed  of  the  soil  itself. 
In  consequence  of  which  legal  seisin,  all  wives  would  have 
'6  Edw.  I.,  c.  7.  *i  Inst.  36. 


ESTATES    FOR    LIFE.  2/5 

become  dowable  of  such  lands  as  were  held  to  the  use  of 
their  husbands,  and  also  entitled  at  the  same  time  to  any 
special  lands  that  might  be  settled  in  jointure :  had  not  the 
same  statute  provided,  that  upon  making  such  an  estate  in 
jointure  to  the  wife  before  marriage,  she  shall  be  forever 
precluded  from  the  dower.  But  then  these  four  requisites 
must  be  punctually  observed:  I.  The  jointure  must  take 
effect  immediately  on  the  death  of  the  husband.  2.  It  must 
be  for  her  own  life  at  least,  and  not  pur  auter  vie,  or  for  any 
term  of  years,  or  other  smaller  estate.  3.  It  must  be  made 
to  herself,  and  no  other  in  trust  for  her.  4.  It  must  be 
made,  and  so  in  the  deed  particularly  expressed,  to  be  in  sat- 
isfaction of  her  whole  dower,  and  not  of  any  particular  part 
of  it.  If  the  jointure  be  made  to  her  after  marriage,  she  has 
her  election  after  her  husband's  death,  as  in  dower  ad. 
ostium  ecclesiae,  and  may  either  accept  it,  or  refuse  it  and: 
betake  herself  to  her  dower  at  common  law;  for  she  was: 
not  capable  of  consenting  to  it  during  coverture.  And  if,  by 
any  fraud  or  accident,  a  jointure  made  before  marriage 
proves  to  be  on  a  bad  title,  and  the  jointress  is  evicted,  or 
turned  out  of  possession,  she  shall  then  (by  the  provisions 
of  the  same  statute)  have  her  dower  pro  tanto  at  the  com- 
mon law. 

WILLIAMS,  REAL  PROP.  (i7th  ed.),  367.  Dower,  as  it 
existed  previously  to  the  operation  of  the  Dower  Act,1  was 
of  very  ancient  origin,  and  retained  an  inconvenient  prop- 
erty which  accrued  to  it  in  the  simple  times  when  alienation* 
of  lands  was  far  less  frequent  than  at  present.  If  at  any 
time  during  the  coverture  the  husband  became  solely  seisedL 
of  any  estate  of  inheritance,  that  is,  fee  simple  or  fee  tail,, 
in  lands  to  which  any  issue  which  the  wife  might  have  had 
might  by  possibility  have  been  heir,  she  from  that  time  be- 
came entitled,  on  his  decease,  to  have  one  equal  third  part  of 
the  same  lands  allotted  to  her,  to  be  enjoyed  by  her  in  sever- 
ally during  the  remainder  o'f  her  life.  This  right  having; 
1  Stat.  3  &  4  Will.  IV.,  c.  105. 


276   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

once  attached  to  the  lands  adhered  to  them,  notwithstanding 
any  sale  or  devise  which  the  husband  might  make.  It  con- 
sequently became  necessary  for  the  husband,  whenever  he 
wished  to  make  a  valid  conveyance  of  his  lands,  to  obtain 
the  concurrence  of  his  wife,  for  the  purpose  of  releasing  her 
right  to  dower.-  This  release  could  be  effected  only  by 
means  of  a  fine,  in  which  the  wife  was  separately  examined. 
And  when,  as  often  happened,  the  wife's  concurrence  was 
not  obtained  on  account  of  the  expense  involved  in  levying 
a  fine,  a  defect  in  the  title  obviously  existed  so  long  as  the 
wife  lived.  As  the  right  to  dower  was  paramount  to  the 
alienation  of  the  husband,  so  it  was  quite  independent  of 
his  debts,  even  of  those  owing  to  the  Crown.  It  was  neces- 
sary, however,  that  the  husband  should  be  seised  of  an 
estate  of  inheritance  at  law ;  for  the  Court  of  Chancery, 
while  it  allowed  to  husbands  curtesy  of  their  wives'  equi- 
table estates,  withheld  from  wives  a  like  privilege  of  dower 
out  of  the  equitable  estates  of  their  husbands.  The  estate, 
moreover,  must  have  been  held  in  severalty  or  in  common, 
and  not  a  joint-tenancy ;  for  the  unity  of  interest  which 
characterizes  a  joint-tenancy  forbids  the  intrusion  into  such 
a  tenancy  of  the  husband  or  wife  of  any  deceased  joint-ten- 
ant ;  on  the  decease  of  any  joint-tenant,  his  surviving  com- 
panions are  already  entitled  under  the  original  gift  to  the 
whole  subject  of  the  tenancy.  The  estate  was  also  required 
to  be  an  estate  of  inheritance  in  possession ;  although  a 
seisin  in  law,  obtained  by  the  husband,  was  sufficient  to 
cause  his  wife's  right  of  dower  to  attach.  In  no  case,  also, 
was  any  issue  required  to  be  actually  born ;  it  was  sufficient 
that  the  wife  might  have  had  issue  who  might  have  inher- 
ited. The  dower  of  the  widow  in  gavelkind  lands  con- 
sisted, and  still  consists,  like  the  husband's  curtesy,  of  a 
moiety,  and  continues  only  so  long  as  she  remains  unmar- 
ried and  chaste. 

ID.,  369-371.  The  right  of  dower  might  have  been  barred 
altogether  by  a  jointure,  agreed  to  be  accepted  by  the  in- 
tended wife  previously  to  marriage,  in  lieu  of  dower.  .  .  . 


ESTATES    FOR    LIFE.  277 

The  dower  of  women  married  since  the  ist  of  January, 
1834,  may  be  barred  by  the  acceptance  of  a  jointure  in  the 
same  manner  as  before;  but,  in  their  case,  the  doctrine  of 
jointures  is  of  very  little  moment.  For,  by  the  Dower  Act, 
the  dower  of  such  women  has  been  placed  completely  within 
the  power  of  their  husbands.  Under  the  Act  no  widow 
is  entitled  to  dower  out  of  any  land,  which  shall  have 
been  absolutely  disposed  of  by  her  husband  in  his  lifetime 
01;  by  his  will,  or  in  which  he  shall  have  devised  any  estate 
or  interest  for  her  benefit,  unless  (in  the  latter  case)  a 
contrary  intention  shall  be  declared  by  his  will.  And  all 
partial  estates  and  interests,  and  all  charges  created  by  any 
disposition  or  will  of  the  husband,  and  all  debts,  incum- 
brances,  contracts  and  engagements  to  which  his  lands  may 
be  liable,  shall  be  effectual  as  against  the  right  of  his  widow 
to  dower.  The  husband  may  also  either  wholly  or  partially 
deprive  his  wife  of  her  right  to  dower,  by  any  declaration 
for  that  purpose  made  by  him,  by  any  deed,  or  by  his  will. 
As  some  small  compensation  for  these  sacrifices,  the  Act  has 
granted  a  right  of  dower  out  of  lands  to  which  the  husband 
had  a  right  merely  without  having  had  even  a  legal  seisin ; 
dower  is  also  extended  to  equitable  as  well  as  legal  estates 
of  inheritance  in  possession,  excepting  of  course  estates  in 
joint-tenancy.  The  effect  of  the  Act  is  evidently  to  deprive 
the  wife  of  her  dower,  except  as  against  her  husband's  heir 
at  law.  If  the  husband  should  die  intestate,  and  possessed 
of  any  lands,  the  wife's  dower  out  of  such  lands  is  still  left 
her  for  her  support — unless,  indeed,  the  husband  should 
have  executed  a  declaration  to  the  contrary. 

ID->  377-  The  legislation  in  this  country  in  regard  to 
dower  is  not  uniform,  and  is  much  less  sweeping  than  in 
England.  In  the  following  States  dower  has  been  expressly 
abolished  by  statute,  and  a  provision  made  for  the  widow's 
benefit  in  the  statutes  of  descent:  California  (Civ.  Code  of 
1886,  sec.  173),  Colorado  (Mills'  Ann.  Stat,  sec.  1524), 
the  Dakotas  (Comp.  Laws  of  1887,  sees.  2594,  3402),  In- 
diana (Burns'  Ann.  Stat.  sec.  2639),  Iowa  (i  McClain's 


278   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

Ann.  Code,  sec.  3644),  Kansas  (Gen.  Stat.  of  1889,  sec. 
2619),  Minnesota  (Gen.  Stat.  of  1891,  Kelly's  ed.,  sec. 
4001),  Mississippi  (Ann  Code  of  1892,  sec.  2291),  Wash- 
ington (i  Hill's  Ann.  Stat.,  sees.  1405,  1482),  and  Wyoming 
(R.  S.  of  1887,  sec.  2221).  While  statutory  changes  of 
more  or  less  importance  are  found  in  other  States,  in  the 
majority  dower  exists  substantially  as  at  common  law.  In 
New  Hampshire  (Pub.  Stat.  of  1891,  chap.  195,  sec.  3), 
Vermont  (Rev.  Laws  of  1880,  sec.  2215),  and  a  few  other 
States,  it  is  restricted  to  the  real  estate  of  which  the  husband 
dies  seised ;  but  in  Vermont  a  conveyance  made  by  the  hus- 
band during  coverture  with  a  fraudulent  intention  to  defeat 
the  wife's  dower  right  is  void  as  against  her.  See  Nichols 
v.  Nichols,  6 1  Vt.,  426.  Under  our  statutes,  dower  usually 
•attaches  to  equitable  as  well  as  legal  estates.  .  .  .  But 
the  common-law  rule  prevails  in  several  States ;  and  in  those 
in  which  it  has  been  changed,  it  is  generally  held  that  the 
wife's  right  to  dower  in  the  equitable  estates  of  her  husband 
extends  only  to  those  cases  in  which  he  is  possessed  of  such 
estates  at  the  time  of  his  death. — Hutchins'  note. 

(3)    TENANT  IN  TAIL  AFTER  POSSIBILITY  OF  ISSUE  EXTINCT. 

LIT.,  §  32.  Tenant  in  fee  taile  after  possibility  of  issue 
.xtinct  is,  where  tenements  are  given  to  a  man  and  to  his 
•wife  in  especiall  taile,  if  one  of  them  die  without  issue,  the 
survivor  is  tenant  in  taile  after  possibility  of  issue  extinct. 
And  if  they  have  issue,  and  the  one  die,  albeit  that  during 
the  life  of  the  issue  the  survivor  shall  not  be  said  tenant  in 
taile  after  possibilitie  of  issue  extinct ;  yet  if  the  issue  die 
without  issue,  so  as  there  be  not  any  issue  alive  which  may 
inherit  by  force  of  the  taile,  then  the  surviving  party  of  the 
donees  is  tenant  in  taile  after  possibilitie  of  issue  extinct. 

§  33.  Also,  if  tenements  be  given  to  a  man  and  to  his 
heires  which  he  shall  beget  on  the  bodie  of  his  wife,  in  this 
case  the  wife  hath  nothing  in  the  tenements,  and  the  husband 
Js  seised  as  donee  in  especiall  taile.  And  in  this  case,  if  the 


ESTATES    FOR    LIFE.  2/Q 

wife  die  without  issue  of  her  body  begotten  by  her  husband, 
then  the  husband  is  tenant  in  taile  after  possibility  of  issue 
extinct. 

§  34.  And  note,  that  none  can  be  tenant  in  taile  after 
possibility  of  issue  extinct  but  one  of  the  donees,  or  the 
donee  in  especial  taile.  For  the  donee  in  generall  taile  can- 
not be  said  to  be  tenant  in  taile  after  possibility  of  issue  ex- 
tinct ;  because  alwaies  during  his  life  he  may  by  possibility 
have  issue  which  may  inherit  by  force  of  the  same  entaile. 
And  so  in  the  same  manner  the  issue,  which  is  heir  to  the 
donees  in  especiall  taile,  cannot  be  tenant  in  taile  after  pos- 
sibility of  issue  extinct,  for  the  reason  above  said. 

2  BL.  COM.,  124-126.  The  next  estate  for  life  is  of  the 
legal  kind,  as  contradistinguished  from  conventional;  viz., 
that  of  tenant  in  tail  after  possibility  of  issue  extinct.  This 
happens  where  one  is  tenant  in  special  tail;  and  a  person, 
from  whose  body  the  issue  was  to  spring,  dies  without 
issue ;  or,  having  left  issue,  that  issue  becomes  extinct :  in 
either  of  these  cases  the  surviving  tenant  in  special  tail  be- 
comes tenant  in  tail  after  possibility  of  issue  extinct.  As 
where  one  has  an  estate  to  him  and  his  heirs  on  the  body  of 
his  present  wife  to  be  begotten,  and  the  wife  dies  without 
issue :  in  this  case  the  man  has  an  estate  tail,  which  cannot 
possibly  descend  to  any  one;  and  therefore  the  law  makes 
use  of  this  long  periphrasis,  as  absolutely  necessary  to  give 
an  adequate  idea  of  his  estate.  For  if  it  had  called  him 
barely  tenant  in  fee-tail  special,  that  would  not  have  dis- 
tinguished him  from  others ;  and  besides,  he  has  no  longer 
an  estate  of  inheritance  or  fee,  for  he  can  have  no  heirs 
capable  of  taking  per  formam  donu  Had  it  called  him  ten- 
ant in  tail  •without  issue,  this  had  orily  related  to  the  present 
fact,  and  would  not  have  excluded  the  possibility  of  future 
issue.  Had  he  been  styled  tenant  in  tail  without  possibility 
of  issue,  this  would  exclude  time  past  as  well  as  present,  and 
he  might  under  this  description  never  have  had  any  pos- 
sibility of  issue.  No  definition  therefore  could  so  exactly 


28O   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

mark  him  out,  as  this  of  tenant  in  tail  after  possibility  of 
issue  extinct,  which  (with  a  precision  peculiar  to  our  own 
law)  not  only  takes  in  the  possibility  of  issue  in  tail,  which 
he  once  had,  but  also  states  that  this  possibility  is  now  ex- 
tinguished and  gone. 

This  estate  must  be  created  by  the  act  of  God,  that  is,  by 
the  death  of  that  person  out  of  whose  body  the  issue  was  to 
spring;  for  no  limitation,  conveyance,  or  other  human  act 
can  make  it.  For,  if  land  be  given  to  a  man  and  his  wife, 
and  the  heirs  of  their  two  bodies  begotten,  and  they  are 
divorced  a  vinculo  matrimonii,  they  shall  neither  of  them 
have  this  estate,  but  be  barely  tenants  for  life,  notwithstand- 
ing the  inheritance  once  vested  in  them.  A  possibility  of 
issue  is  always  supposed  to  exist  in  law,  unless  extin- 
guished by  the  death  of  the  parties ;  even  though  the  donees 
be  each  of  them  an  hundred  years  old. 

This  estate  is  of  an  amphibious  nature,  partaking  partly 
of  an  estate  tail,  and  partly  of  an  estate  for  life.  The  tenant 
is,  in  truth,  only  tenant  for  life,  but  with  many  of  the  priv- 
ileges of  a  tenant  in  tail ;  as  not  to  be  punishable  for  waste, 
etc. ;  or,  he  is  tenant  in  tail,  with  many  of  the  restrictions  of 
a  tenant  for  life ;  as  to  forfeit  his  estate  if  he  alienes  it  in 
fee-simple :  whereas  such  alienation  by  tenant  in  tail,  though 
voidable  by  the  issue,  is  no  forfeiture  of  the  estate  to  the  re- 
versioner :  who  is  not  concerned  in  interest,  till  all  possibil- 
ity of  issue  be  extinct.  But,  in  general,  the  law  looks  upon 
this  estate  as  equivalent  to  an  estate  for  life  only ;  and,  as 
such,  will  permit  this  tenant  to  exchange  his  estate  with  a 
tenant  for  life,  which  exchange  can  only  be  made  .  .  . 
of  estates  that  are  equal  in  their  nature. 


//  Estates  not  of  Freehold. 

CHAPTER  I. 
ESTATES  FOR  YEARS. 

LIT.,  §  58.  Tenant  for  terme  of  yeares  is  where  a  man 
letteth  lands  or  tenements  to  another  for  terme  of  certaine 
yeares,  after  the  number  of  yeares  that  is  accorded  between 
the  lessor  and  the  lessee.  And  when  the  lessee  entreth  by 
force  of  the  lease,  then  is  he  tenant  for  tearme  of  yeares ; 
and  if  the  lessor  in  such  case  reserve  to  him  a  yearely  rent 
upon  such  lease,  he  may  chuse  for  to  distraine  for  the  rent 
in  the  tenements  letten,  or  else  he  may  have  an  action  of  debt 
for  the  arrerages  against  the  lessee.  But  in  such  case  it 
behooveth  that  the  lessor  be  seised  in  the  same  tenements  at 
the  time  of  his  lease ;  for  it  is  a  good  plee  for  the  lessee  to 
say,  that  the  lessor  had  nothing  in  the  tenements  at  the  time 
of  the  lease,  except  the  lease  be  made  by  deed  indented,  in 
which  case  such  plee  lieth  not  for  the  lessee  to  plead. 

Co.  LIT.,  45,  b.  Words  to  make  a  lease  be,  demise,  grant, 
to  fearme  let,  betake ;  and  whatsoever  word  amounteth  to  a 
grant  may  serve  to  make  a  lease.  .  .  . 

"De  certaine  ans."  For  regularly  in  every  lease  for 
yeares  the  terme  must  have  a  certaine  beginning  and 
a  certaine  end;  and  herewith  agreeth  Bracton,  Terminus 
annorum  certiis  debet  esse  et  determinatus.  And  Littleton 
is  here  to  be  understood,  first,  that  the  yeares  must  be  cer- 
taine when  the  lease  is  to  take  effect  in  interest  or  posses- 
sion. For  before  it  takes  effect  in  possession  or  interest,  it 


282   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

may  depend  upon  an  incertainty,  vis.,  upon  a  possible  con- 
tingent before  it  begin  in  possession  or  interest,  or  upon  a 
limitation  or  condition  subsequent.  Secondly,  albeit  there 
appeare  no  certainty  of  yeares  in  the  lease,  yet  if  by  refer- 
ence to  a  certainty  it  may  be  made  certain  it  sufficeth,  Quia 
id  cerium  est  quod  certum  reddi  potest.  For  example  of  the 
first.  If  A.  seised  of  lands  in  fee  grant  to  B.,  that  when 
B.  payes  to  A.  xx.  shillings,  that  from  henceforth  he  shall 
have  and  occupie  the  land  for  21  yeares,  and  after  B.  payes 
the  xx.  shillings,  this  is  a  good  lease  for  21  yeares  from 
henceforth.  For  the  second,  if  A.  leaseth  his  land  to  B.  for 
so  many  yeares  as  B.  hath  in  the  manner  of  Dale,  and  B. 
hath  then  a  terme  in  the  manner  of  Dale  for  10  yeares,  this 
is  a  good  lease  by  A.  to  B.  of  the  land  of  A.  for  10  yeares. 
If  the  parson  of  D.  make  a  lease  of  his  glebe  for  so  many 
yeares  as  he  shall  be  parson  there,  this  cannot  be  made  cer- 
taine  by  any  meanes,  for  nothing  is  more  uncertaine  then 
the  time  of  death,  Terminus  vitae  est  incertus,  et  licet  nihil 
certius  sit  morte,  nihil  tamen  incertius  est  hora  mortis.  But 
if  he  make  a  lease  for  three  yeares,  and  so  from  three  yeares 
to  three  yeares,  so  long  as  he  shall  be  parson,  this  is  a  good 
lease  for  6  yeares,  if  he  continue  parson  so  long,  first  for 
three  yeares,  and  after  that  for  three  yeares;  and  for  the 
residue  uncertaine. 

If  a  man  make  a  lease  to  /.  S.  for  so  many  yeares  as  /.  N. 
shall  name,  this  at  the  beginning  is  uncertaine;  but  when 
/.  AT.  hath  named  the  yeares,  then  it  is  a  good  lease  for  so 
many  yeares.  A  man  maketh  a  lease  for  21  yeares  if  /.  S. 
live  so  long;  that  is  a  good  lease  for  yeares,  and  yet  is  cer- 
taine  in  incertainty,  for  the  life  of  /.  S.  is  incertaine.  .  .  . 
By  the  ancient  law  of  England  for  many  respects  a  man 
could  not  have  made  a  lease  above  40  yeares  at  the  most,  for 
then  it  was  said  that  by  long  leases  many  were  prejudiced, 
and  many  times  men  disherited,  but  that  ancient  law  is 
antiquated. 

46,  b.  "Et  quant  le  lessee  enter  per  force  del  lease, 
donques  il  est  tenant  pur  terme  des  ans."  And  true  it  is, 


ESTATES    FOR    YEARS.  283 

that  to  many  purposes  he  is  not  tenant  for  yeares  until  he 
enter :  as  a  release  made  to  him  is  not  good  to  him  to  in- 
crease his  estate  before  entry ;  but  he  may  release  the  rent 
reserved  before  entry,  in  respect  of  the  privity.  Neither  can 
the  lessor  grant  away  the  reversion  by  the  name  of  the  rever- 
sion, before  entry.  Vide  sec.  567.  But  the  lessee  before 
entry  hath  an  interest,  interesse  termini,  grantable  to  an- 
other. Vide  sec.  319.  And  albeit  the  lessor  dye  before  the 
lessee  enters,  yet  the  lessee  may  enter  into  the  lands,  as  our 
author  himselfe  holdeth  in  this  Chapter.  And  so  if  the 
lessee  dyeth  before  he  entred,  yet  his  executors  or  adminis- 
trators may  enter,  because  he  presently  by  the  lease  hath  an 
interest  in  him :  and  if  it  be  made  to  two,  and  one  dye  before 
entry,  his  interest  shall  survive.  Vide  Sect.  281. 

2  BL.  COM.,  140-144.  Of  estates  that  are  less  than  free- 
hold, there  are  three  sorts:  I.  Estates  for  years.  2.  Es- 
tates at  will.  3.  Estates  by  sufferance. 

I.  An  estate  for  years  is  a  contract  for  the  possession  of 
lands  or  tenements  for  some  determinate  period;  and  it 
takes  place  where  a  man  letteth  them  to  another  for  the  term 
of  a  certain  number  of  years,  agreed  upon  between  the 
lessor  and  the  lessee,  and  the  lessee  enters  thereon.  If  the 
lease  be  but  for  half  a  year  or  a  quarter,  or  any  less  time, 
this  lessee  is  respected  as  a  tenant  for  years,  and  is  styled  so 
in  some  legal  proceedings ;  a  year  being  the  shortest  term 

which  the  law  in  this  case  takes  notice  of. 

*  *  *  *  *  *  * 

These  estates  were  originally  granted  to  mere  farmers  or 
husbandmen,  who  every  year  rendered  some  equivalent  in 
money,  provisions,  or  other  rent,  to  the  lessors  or  landlords ; 
but,  in  order  to  encourage  them  to  manure  and  cultivate  the 
ground,  they  had  a  permanent  interest  granted  them,  not 
determinable  at  the  will  of  the  lord.  And  yet  their  posses- 
sion was  esteemed  of  so  little  consequence,  that  they  were 
rather  considered  as  the  bailiffs  or  servants  of  the  lord,  who 
were  to  receive  and  account  for  the  profits  at  a  settled  price, 


284   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

than  as  having  any  property  of  their  own.  And  therefore 
they  were  not  allowed  to  have  a  freehold  estate:  but  their 
interest  (such  as  it  was)  vested  after  their  deaths  in  their 
executors,  who  were  to  make  up  the  accounts  of  their  testa- 
tor with  the  lord,  and  his  other  creditors,  and  were  entitled 
to  the  stock  upon  the  farm.  The  lessee's  estate  might  also, 
by  the  ancient  law,  be  at  any  time  defeated  by  a  common  re- 
covery suffered  by  the  tenant  of  the  freehold;  which  anni- 
hilated all  leases  for  years  then  subsisting,  unless  afterwards 
renewed  by  the  recoveror,  whose  title  was  supposed  supe- 
rior to  his  by  whom  those  leases  were  granted. 

*  *  *  *  *  *  * 

We  have  before  remarked  and  endeavored  to  assign  the 
reason  of  the  inferiority  in  which  the  law  places  an  estate 
for  years,  when  compared  with  an  estate  for  life,  or  an  in- 
heritance :  observing,  that  an  estate  for  life,  even  if  it  be  pur 
outer  vie,  is  a  freehold ;  but  that  an  estate  for  a  thousand 
years  is  only  a  chajttel,  and  reckoned  part  of  the  personal 
estate.  Hence  it  follows,  that  a  lease  for  years  may  be  made 
to  commence  in  future,  though  a  lease  for  life  cannot.  As, 
if  I  grant  lands  to  Titius  to  hold  from  Michaelmas  next  for 
twenty  years,  this  is  good;  but  to  hold  from  Michaelmas 
next  for  the  term  of  his  natural  life,  is  void.  For  no  estate 
of  freehold  can  commence  in  futuro;  because  it  cannot  be 
created  at  common  law  without  livery  of  seisin,  or  corporal 
possession  of  the  land ;  and  corporal  possession  cannot  be 
given  of  an  estate  now,  which  is  not  to  commence  now,  but 
hereafter.  And,  because  no  livery  of  seisin  is  necessary  to  a 
lease  for  years,  such  lessee  is  not  said  to  be  seised,  or  to  have 
true  legal  seisin  of  the  lands.  Nor  indeed  does  the  bare 
lease  vest  any  estate  in  the  lessee ;  but  only  gives  him  a  right 
of  entry  on  the  tenement,  which  right  is  called  his  interest  in 
the  term,  or  inter ess c  termini:  but  when  he  has  actually  so 
entered,  and  thereby  accepted  the  grant,  the  estate  is  then, 
and  not  before,  vested  in  him,  and  he  is  possessed,  not  prop- 
erly of  the  land,  but  of  the  term  of  years ;  the  possession  or 
seisin  of  the  land  remaining  still  in  him  who  hath  the  free- 


ESTATES    FOR    YEARS.  285 

hold.  Thus  the  word  term  does  not  merely  signify  the  time 
specified  in  the  lease,  but  the  estate  also  and  interest  that 
passes  by  that  lease ;  and  therefore  the  term  may  expire, 
during  the  continuance  of  the  time;  as  by  surrender,  for- 
feiture, and  the  like.  For  which  reason,  if  I  grant  a  lease  to 
A.  for  the  term  of  three  years,  and,  after  the  expiration  of 
the  said  term,  to  B.  for  six  years,  and  A.  surrenders  or  for- 
feits his  lease  at  the  end  of  one  year,  B.'s  interest  shall  im- 
mediately take  effect :  but  if  the  remainder  had  been  to  B. 
from  and  after  the  expiration  of  the  said  three  years,  or 
from  and  after  the  expiration  of  the  said  time,  in  this  case 
B.'s  interest  will  not  commence  till  the  time  is  fully  elapsed, 
whatever  may  become  of  A.'s  term. 

DIGBY,  HIST.  REAL  PROP.,  Ch.  V.,  §  i.  Leasehold  In- 
terests.— The  early  history  of  leasehold  interests  or  estates 
for  years  has  already  been  noticed,  and  reference  has  been 
made  to  the  change  effected  in  the  reign  of  Henry  III.,  by 
which  leasehold  interests  were  erected  into  a  distinct  kind  of 
estate  or  property  in  land.1  This  interest  or  property  is  less 
than  freehold,  it  is  wanting  in  the  great  characteristic  of 
freehold — uncertainty  as  to  the  period  at  which  the  rights 
*will  come  to  an  end.  It  is  essential  to  a  leasehold,  or,  as  it 
is  often  called,  a  chattel  interest  in  land,  that  the  period  of 
its  termination  should  be  fixed  from  the  beginning,  or  at 
least  be  capable  of  being  fixed. 

The  rights  under  consideration  present  characteristics 
wholly  different  to  freehold  interests  as  to  the  mode  in 
which  they  are  created,  the  kind  of  interest  which  may  be 
given,  the  mode  in  which  they  devolve  on  the  death  of  the 
person  entitled,  and  the  remedy  by  which  the  right  is  vindi- 
cated. 

The  proper  mode  of  granting  an  estate  for  years  at  com- 
mon law  is  by  words  of  demise  followed  by  the  entry  of  the 
lessee.  The  appropriate  words  of  the  grant  are  demisi,  con- 
cessi  et  ad  firmam  tradidi — demise,  grant,  and  to  farm  let. 
'See  page  12,  supra. — ED. 


286   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

The  lessee  is  sometimes  called  the  tcrmor,  sometimes,  from 
the  main  object  of  the  transaction,  the  farmer.  It  was 
not  necessary  that  the  words  of  demise  should  be  in  writ- 
ing until  the  passing  of  the  Statute  of  Frauds  (29  Car.  II., 
c.  3),  which  rendered  writing  necessary  for  the  validity 
of  all  leases,  except  those  for  a  term  not  exceeding  three 
years,  and  fulfilling  certain  conditions  as  to  rent.  In  order 
to  complete  the  interest  of  the  lessee,  it  is,  at  common  law, 
necessary  that  the  words  of  demise  should  be  followed 
by  his  entry  on  the  lands.  The  words  of  demise,  spoken 
or  written,  confer  a  right  to  enter,  technically  called  an 
interesse  termini,  but  the  lessee  does  not  become  actually 
tenant  in  possession  until  he  has  made  entry  upon  the  land 
demised. 

Leasehold  interests,  requiring  no  livery  of  seisin,  may  at 
common  law  be  created  so  as  to  take  effect  in  possession  or 
enjoyment  at  a  future  time.  This  is  impossible  in  freehold 
interests  except  in  the  case  of  remainders.  A  lease  to  com- 
mence next  Christmas  conveys  a  perfect  right  to  the  lessee 
to  enter  at  Christmas,  and  to  hold  for  the  specified  term. 
Again,  leasehold  interests  are  not  subject  to  the  rules 
affecting  the  devolution  of  freehold  interests.  Before  the 
change  recorded  by  Bracton,1  the  only  parties  who  could 
under  any  circumstances  have  claimed  the  benefits  of  a 
lease  on  the  death  of  the  lessee  were  his  executors  or  ad- 
ministrators, and  that  only  when  the  lease  rested  on  an  ex- 
press covenant  by  deed.  Hence,  when  leasehold  interests 
became  rights  of  property  (or  rights  available  not  only 
against  the  lessor,  but  also  against  all  the  world),  it  was 
natural  that  they  should  not  be  brought  under  the  rule  of 
primogeniture,  but  should  pass  under  the  will  to  the  execu- 
tors of  the  deceased,  or,  in  the  case  of  intestacy,  to  the  ad- 
ministrator, with  the  rest  of  the  chattels.  Thus  leasehold 
interests  came  to  be  classed  with  personal  property.  Since, 
however,  they  are  rights  over  things  immovable,  they  re- 
ceived the  mongrel  name  of  "chattels  real,"  and  cannot  be 

1  See  page  12,  supra. — ED. 


ESTATES    FOR    YEARS.  287 

excluded  from  a  treatise  professing  to  deal  with  real  prop- 
erty.1 

The  nature  of  the  remedy  provided  for  the  ejected  lease- 
holder, contra  quoscunque  dejectores,  has  already  been 
stated.2  The  writ  then  devised,  however,  left  the  lessee 
without  remedy  in  two  cases.  First,  not  having  the  free- 
hold, he  was  liable  to  be  ousted  by  the  successful  plaintiff  in 
a  collusive  action  against  the  lessor,  in  which  the  lessor 
allowed  judgment  to  go  against  him  by  default,  or,  as  it  was 
technically  called,  suffered  a  recovery.  A  partial  remedy 
for  this  injustice  was  provided  by  the  Statute  of  Gloucester,3 
but  the  leaseholder  was  not  wholly  protected  against  a  pro- 
ceeding of  this  nature  till  the  statute  21  Henry  VIII.,  c.  15. 
Secondly,  if  the  lessor  ejected  the  lessee,  and  then  enfeoffed 
a  third  person,  the  lessee  could  not  bring  his  writ  of  quare 
cjccit  infra  terminum  against  the  feoffee,  because  he  was 
not  the  ejector;  nor  against  the  lessor,  because  he  was  not 
in  possession.  A  further  remedy  was  therefore  necessary, 
and  a  writ  was  devised,  being  a  development  of  the  writ  of 
trespass,  and  called  the  writ  of  ejcctio  firmce,  which  was 
available  in  the  case  supposed  against  the  feoffee.  This  pro- 
ceeding was  by  a  series  of  fictions  (now  abolished)  ex- 
tended, till,  in  the  form  of  the  action  of  ejectment,  it  became 
the  appropriate  means  of  asserting  the  right  to  the  posses- 
sion of  land  under  whatever  title,  and  took  its  place  as  the 
statutory  substitute  for  all  the  forms  of  real  actions.  Thus 
the  interest  of  the  lessee  for  years  was  gradually  protected 
at  all  points,  and  took  its  place  as  a  distinct  class  of  rights 
of  property. 

LEAKE,  LAND  LAW,  220.  An  estate  for  years  may  be 
made  determinable  by  a  conditional  limitation,  as  the  continu- 
ance of  a  life  or  lives  or  other  uncertain  event.  Thus,  a 
lease  for  100  years,  if  A.  shall  so  long  live,  creates  a  term 
of  years  determinable  upon  the  death  of  A.;  and  upon  the 

1  See  page  12,  supra. — ED.  *  See  page  13,  supra. — ED. 

3 6  Edward  I.,  c.  n.     See  Coke  upon  Littleton,  46,  a. 


288   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

death  of  A.  there  is  no  residue  of  the  term,  though  there 
may  be  a  residue  of  the  years,  so  that  a  limitation  over  for 
the  residue  of  the  term  is  void,  unless  by  term  is  meant  the 
time  and  not  the  interest.  A  lease  for  so  many  years  as  A. 
shall  live,  not  being  limited  by  any  certain  period,  is  not  an 
estate  for  years,  but  a  freehold  or  an  estate  for  life.  An 
estate  for  100  years,  if  A,  and  B.  shall  so  long  live,  deter- 
mines upon  the  death  of  either  of  them ;  but  an  estate  for  the 
lives  of  A.  and  B.  continues  until  the  death  of  the  survivor. 

2  BL.  COM.,  143.  It  is  the  duty  of  the  tenant  to  maintain 
the  title  of  his  landlord.  It  results  from  the  fealty  which  is 
incident  to  every  tenure.  It  is  one  of  the  best  settled  prin- 
ciples of  the  law  that  neither  the  tenant,  nor  any  one  claim- 
ing under  him  nor  by  collusion  with  him,  shall  be  permitted 
to  controvert  his  landlord's  title.  In  an  action  of  covenant 
on  the  demise,  the  tenant  cannot  plead  nil  habuit  in  tene- 
mentis;  in  an  action  of  ejectment,  he  cannot  set  up  a  title  in 
himself  or  an  outstanding  title  in  another.  If  he  has  ac- 
quired a  better  title  than  the  landlord,  he  is  bound  to  sur- 
render the  possession  at  the  termination  of  his  lease,  though 
he  may  afterwards  prosecute  his  better  title. — Sharswood's 
note. 

BIGELOW,  ESTOPPEL,  390.  Creation  of  the  relation  of 
landlord  and  tenant  has  the  effect  in  law  of  estopping  the 
tenant  to  deny  the  sufficiency,  for  the  lease,  of  the  title  thus 
admitted  to  exist  in  the  landlord.  We  have  already  alluded 
to  the  fact  that  this  estoppel  is  of  modern  origin.  In  the 
time  of  Lord  Coke  the  only  way  in  which  a  tenant  could  be 
estopped  to  deny  the  title  of  his  landlord  was  by  the  accept- 
ance of  a  sealed  lease.  That  this  estoppel  took  its  rise  from 
the  seal,  and  differed  in  origin  from  the  modern  estoppel,  is 
evident  from  the  fact  that  in  the  case  of  a  lease  by  deed- 
poll  the  estoppel  was  confined  to  the  party  sealing;  while  it 
is  quite  certain  that  at  the  present  time  it  is  immaterial  to 
the  existence  of  the  estoppel  whether  the  lease  be  by  deed- 


ESTATES    FOR    YEARS.  289 

poll  or  by  indenture,  or  even  whether  there  be  any  written 
lease  at  all.  And  again  the  estoppel  terminated  with  the  ex- 
piration of  the  lease ;  while  at  the  present  day  the  estoppei 
continues  until  the  surrender  of  possession. 

ID.,  393.  The  conclusion  appears  to  be  justified  that  the 
origin  and  character  of  the  modern  estoppel  of  the  tenant  is 
to  be  found  in  this  ancient  action  of  assumpsit  for  use  and 
occupation.  In  this  form  of  action  what  was  sought  to  be 
recovered  was,  not  technically  rent,  but  compensation  from 
day  to  day  for  actual  enjoyment.  But  to  the  maintenance  of 
the  action  the  relation  of  landlord  and  tenant  must  be  estab- 
lished; and  when  established  the  modern  estoppel  in  pais 
arises.  Enjoyment  by  permission  is  the  foundation  of  the 
action,  and  is  therefore  the  foundation  of  the  rule  that  a 
tenant  shall  not  be  permitted  to  dispute  the  title  of  his  land- 
lord. Two  conditions  then  are  essential  to  the  existence  of 
the  estoppel :  first,  possession ;  secondly,  permission ;  when 
these  conditions  are  present  the  estoppel  arises. 


CHAPTER  II. 

ESTATES  AT  WILL. 

(a)  Pure  Tenancies  at  Will. 

LIT.,  §  68.  Tenant  at  will  is,  where  lands  or  tenements 
are  let  by  one  man  to  another,  to  have  and  to  hold  to  him  at 
the  will  of  the  lessor,  by  force  of  which  lease  the  lessee  is  in 
possession.  In  this  case  the  lessee  is  called  tenant  at  will, 
because  he  hath  no  certain  or  sure  estate,  for  the  lessor  may 
put  him  out  at  what  time  it  pleaseth  him.  Yet  if  the  lessee 
soweth  the  land,  and  the  lessor,  after  it  is  sowne  and  before 
the  corne  is  ripe,  put  him  out,  yet  the  lessee  shall  have  the 
come,  and  shall  have  free  entry,  egresse  and  regresse  to  cut 
and  carrie  away  the  corne,  because  he  knew  not  at  what  time 
the  lessor  would  enter  upon  him.  Otherwise  it  is  if  the  ten- 
ant for  yeares,  which  knoweth  the  end  of  his  terme,  doth 
sow  the  land,  and  his  terme  endeth  before  the  corn  is  ripe. 
In  this  case  the  lessor,  or  he  in  the  reversion  shall  have  the 
corne,  because  the  lessee  knew  the  certainty  of  his  terme 
and  when  it  would  end. 

§  69.  Also,  if  a  house  be  letten  to  one  to  hold  at  will, 
by  force  whereof  the  lessee  entreth  into  the  house,  and 
brings  his  household  stuff  into  the  same,  and  after  the  lessor 
puts  him  out,  yet  he  shall  have  free  entrie,  egresse  and  re- 
gresse into  the  said  house  by  reasonable  time  to  take  away 
his  goods  and  utensils.  As  if  a  man  seised  of  a  mese  in  fee- 
simple,  fee-taile,  or  for  life,  hath  certaine  goods  within  the 
sayd  house,  and  makes  his  executors,  and  dieth ;  whosoever 
after  his  decease  hath  the  house,  his  executors  shall  have 
free  entry,  egresse  and  regresse  to  carrie  out  of  the  same 
house  the  goods  of  their  testator  by  reasonable  time. 


ESTATES    AT    WILL. 

§  70.  Also  if  a  man  make  a  deed  of  feoffment  to  an- 
other of  certaine  lands,  and  delivereth  to  him  the  deed,  but 
not  liverie  of  seisin;  in  this  case  he,  to  whom  the  deed  is 
made,  may  enter  into  the  land,  and  hold  and  occupie  it  at 
the  will  of  him,  which  made  the  deed,  because  it  is  proved 
by  the  words  of  the  deed,  that  it  is  his  will  that  the  other 
should  have  the  land ;  but  he  which  made  the  deed  may  put 
him  out  when  it  pleaseth  him. 

Co.  LIT.,  55,  a.  It  is  regularly  true  that  every  lease  at  will 
must  in  law  be  at  the  will  of  both  parties,  and  therefore 
when  the  lease  is  made,  to  have  and  to  hold  at  the  will  of 
the  lessor,  the  law  implyeth  it  to  be  at  the  will  of  the  lessee 
also;  for  it  cannot  be  onely  at  the  will  of  the  lessor,  but. 
it  must  be  at  the  will  of  the  lessee  also.  And  so  it  is, 
when  the  lease  is  made  to  have  and  to  hold  at  the  will 
of  the  lessee,  this  must  be  also  at  the  will  of  the  lessor; 
and  so  are  all  the  bookes  that  seeme  prima  facie  to  differ,, 
cleerly  reconciled. 

"Uncore  si  le  lessee  emblea  la  terre,  et  le  lessor  apres  le 
embleer,  &c."  The  reason  of  this  is,  for  that  the  estate  of 
the  lessee  is  uncertaine,  and  therefore  lest  the  ground  should 
be  unmanured,  which  should  be  hurtful  to  the  common- 
wealth, he  shall  reape  the  crop  which  he  hath  sowed  in 
peace,  albeit  the  lessor  doth  determine  his  will  before  it  be 
ripe.  And  so  it  is  if  he  set  rootes,  or  sow  hempe  or  flax,  or 
any  other  annual  profit,  if  after  the  same  be  planted,  the 
lessor  oust  the  lessee ;  or  if  the  lessee  dieth,  yet  he  or  his 
executors  shall  have  the  yeare's  crop.  But  if  he  plant  young 
fruit  trees,  or  yong  oaks,  ashes,  eimes,  &c.,  or  sow  the 
ground  with  acornes,  &c.,  there  the  lessor  may  put  him  out 
notwithstanding,  because  they  will  yeeld  no  present  annuall 
profit.  And  this  is  not  only  proper  to  a  lessee  at  will,  that 
when  the  lessor  determines  his  will  that  the  lessee  shall  have 
the  corne  sowne,  &c.,  but  to  every  particular  tenant  that 
hath  an  estate  incertaine,  for  that  is  the  reason  which  Little- 
ton expresseth  in  these  words  (pur  ceo  que  il  n'ad  ascun 


292   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

certaine  ou  sure  estate).  And  therefore  if  tenant  for  life 
soweth  the  ground,  and  dieth,  his  executors  shall  have  the 
corne,  for  that  his  estate  was  uncertaine,  and  determined 
by  the  act  of  God.  And  the  same  law  is  of  the  lessee  for 
yeares  of  tenant  for  life. 

2  BL.  COM.,  145-147.  The  second  species  of  estates  not 
freehold  are  estates  aVwill.  An  estate  at  will  is  where  lands 
and  tenements  are  let  by  one  man  to  another,  to  have  and 
to  hold  at  the  will  of  the  lessor ;  and  the  tenant  by  force  of 
the  lease  obtains  possession.  Such  tenant  hath  no  certain 
indefeasible  estate,  nothing  that,  can  be  assigned  by  him  to 
any  other;  because  the  lessor  may  determine  his  will,  and 
put  him  out  whenever  he  pleases.  But  every  estate  at  will 
is  at  the  will  of  both  parties,  landlord  and  tenant ;  so  that 
either  of  them  may  determine  his  will,  and  quit  his  connec- 
tion with  the  other  at  his  own  pleasure.  Yet  this  must  be 
understood  with  some  restriction.  For  if  the  tenant  at  will 
sows  his  land,  and  the  landlord,  before  the  corn  is  ripe,  or 
before  it  is  reaped,  puts  him  out,  yet  the  tenant  shall  have 
the  emblements,  and  free  ingress,  egress  and  regress,  to  cut 
and  carry  away  the  profits.  And  this  for  the  same  reason 
upon  which  all  the  cases  of  emblements  turn ;  viz.,  the  point 
of  uncertainty :  since  the  tenant  could  not  possibly  know 
when  his  landlord  would  determine  his  will,  and  therefore 
could  make  no  provision  against  it ;  and  having  sown  the 
land,  which  is  for  the  good  of  the  public,  upon  a  reasonable 
presumption,  the  law  will  not  suffer  him  to  be  a  loser  by  it. 
But  it  is  otherwise,  and  upon  reason  equally  good,  where  the 
tenant  himself  determines  the  will ;  for  in  this  case  the  land- 
lord shall  have  the  profits  of  the  land. 

What  act  does,  or  does  not,  amount  to  a  determination  of 
the  will  on  either  side,  has  formerly  been  matter  of  great 
debate  in  our  courts.  But  it  is  now,  I  think,  settled,  that 
(besides  the  express  determination  of  the  lessor's  will,  by 
declaring  that  the  lessee  shall  hold  no  longer;  which  must 
either  be  made  upon  the  land,  or  notice  must  be  given  to  the 


ESTATES    AT    WILL.  293 

lessee)  the  exertion  of  any  act  of  ownership  by  the  lessor, 
as  entering  upon  the  premises  and  cutting  timber,  taking  a 
distress  for  rent  and  impounding  it  thereon,  or  making  a 
feoffment,  or  lease  for  years  of  the  land  to  commence  im- 
mediately ;  any  act  of  desertion  by  the  lessee,  as  assigning 
his  estate  to  another,  or  committing  waste,  which  is  an  act 
inconsistent  with  such  a  tenure ;  or,  which  is  instar  omnium, 
the  death  or  outlawry  of  either  lessor  or  lessee ;  puts  an  end 
to  or  determines  the  estate  at  will. 

The  law  is,  however,  careful  that  no  sudden  determination 
of  the  will  by  one  party  shall  tend  to  the  manifest  and  un- 
foreseen prejudice  of  the  other.  This  appears  in  the  case 
of  emblements  before  mentioned;  and,  by  a  parity  of  reason, 
the  lessee,  after  the  determination  of  the  lessor's  will,  shall 
have  reasonable  ingress  and  egress  to  fetch  away  his  goods 
and  utensils.  And  if  rent  be  payable  quarterly,  or  half- 
yearly,  and  the  lessee  determines  the  will,  the  rent  shall  be 
paid  to  the  end  of  the  current  quarter  or  half  year.  And, 
upon  the  same  principle,  courts  of  law  have  of  late  years 
leaned  as  much  as  possible  against  construing  demises, 
where  no  certain  term  is  mentioned,  to  be  tenancies  at  will ; 
but  have  rather  held  them  to  be  tenancies  from  year  to  year 
so  long  as  both  parties  please,  especially  where  an  annual 
rent  is  reserved,  in  which  case  they  will  not  suffer  either 
party  to  determine  the  tenancy  even  at  the  end  of  the  year, 
without  reasonable  notice  to  the  other,  which  is  generally 
understood  to  be  six  months. 


(&)  Estates  from  Year  to  Year. 

2  BL.  COM.,  147.  A  tenancy  from  year  to  year  is  where 
tenements  are  expressly  or  impliedly  demised  by  the  land- 
lord to  the  tenant  to  hold  from  year  to  year,  so  long  as  the 
parties  shall  respectively  please;  and  there  cannot  be  such 
a  tenancy  determinable  only  at  the  will  of  the  tenant :  for 
then  it  would  operate  as  a  tenancy  for  his  life,  which  is  not 


READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

creatable  by  parol,  but  only  by  feoffment  or  other  deed.  8 
East,  167.  What  was  formerly  considered  as  a  tenancy  at 
will  has,  in  modern  times,  been  construed  to  be  a  tenancy 
from  year  to  year;  and  from  a  general  occupation  such  a 
tenancy  will  be  inferred,  unless  a  contrary  intent  appear.  3 
Burr.  1609 ;  i  T.  R.  163 ;  3  T.  R.  16;  8  T.  R.  3.  And  so,  in 
the  cases  in  which  the  statute  against  frauds  (29  Car.  II. 
<c.  3)  declares  that  the  letting  shall  only  have  the  effect 
of  an  estate  at  will,  it  operates  as  a  tenancy  from  year  to 
year.  8  T.  R.  3;  5  T.  R.  471.  So,  where  rent  is  received 
by  a  landlord,  that  raises  an  implied  tenancy  from  year  to 
year,  though  the  tenant  was  originally  let  in  under  an 
invalid  lease.  3  East,  451.  So,  if  a  tenant  hold  over  by  con- 
sent after  the  expiration  of  a  lease,  he  becomes  tenant  from 
year  to  year  (5  Esp.  R.  173),  even  where  the  lease  was  de- 
termined by  the  death  of  the  lessor  tenant  for  life  in  the 
middle  of  a  year.  I  H.  B.  97. 

But  if  the  circumstances  of  the  case  clearly  preclude  the 
•construction  in  favor  of  such  a  tenancy,  it  will  not  exist ;  as 
\vhere  a  party  let  a  shed  to  another  for  so  long  as  both 
parties  should  like,  on  an  agreement  that  the  tenant  should 
-convert  it  into  a  stable,  and  the  defendant  should  have  all 
the  dung  for  a  compensation,  there  being  no  reservation  ref- 
erable to  any  aliquot  part  of  a  year,  this  was  construed  to 
be  an  estate  at  will.  4  Taunt.  128.  And  it  must  by  no 
means  be  understood  that  a  strict  tenancy  at  will  cannot 
exist  at  the  present  day ;  for  it  may  clearly  be  created  by  the 
express  will  of  the  parties.  Id.  ibid.  5  B.  &  A.  604.  I 
Dowl.  &  R.  272.  So,  under  an  agreement  that  the  tenant 
shall  always  be  subject  to  quit  at  three  months'  notice,  he 
is  not  tenant  from  year  to  year,  but  from  quarter  to  quarter. 
3  Camp.  510. — Chitty's  note. 

DIGBY,  HIST.  REAL  PROP.,  Ch.  V.,  §  i.  The  inconven- 
iences of  tenancies  at  will  induced  the  tribunals  to  provide 
some  means  of  giving  greater  security  to  a  tenant  who  held 
tjnder  no  regular  lease  for  years.  The  circumstances  of  the 


ESTATES    AT    WILL.  2Q5 

letting — especially  the  character  of  the  rent,  whether  pay- 
able yearly,  half-yearly,  quarterly,  or  otherwise — are  looked 
to,  in  order  to  ascertain  the  nature  of  the  interest  which  the 
parties  intended  to  create.  Most  commonly  the  reservation 
of  an  annual  rent  and  payment  of  any  part  of  it  is  held  to 
constitute  what  is  called  a  tenancy  from  year  to  year.  Such 
a  tenancy  can  usually  be  put  an  end  to  only  at  the  end  of 
the  current  year  of  the  tenancy,  by  either  party  giving  at 
least  half  a  year's  previous  notice  to  quit.1  Other  modifi- 
cations of  tenancies  at  will,  such  as  quarterly,  monthly,  or 
weekly  tenancies,  can  be  created,  depending  in  each  case 
upon  evidence  as  to  the  terms  of  the  letting. 

N.  Y.  REAL  PROP.  LAW,  §  198.  A  tenancy  at  will  or 
by  sufferance,  however  created,  may  be  terminated  by  a 
written  notice  of  not  less  than  thirty  days  given  in  behalf  of 
the  landlord,  to  the  tenant,  requiring  him  to  remove  from 
the  premises.  ...  At  the  expiration  of  thirty  days 
after  the  service  of  such  notice,  the  landlord  may  re-enter, 
maintain  ejectment,  or  proceed,  in  the  manner  prescribed  by 
law,  to  remove  the  tenant,  without  further  or  other  notice  to 
quit. 

1  "  This  kind  of  lease  was  in  use  as  long  ago  as  the  reign  of  Henry 
VIII."  Blackstone,  II.  p.  147,  note,  citing  Year  Book,  T.  13  Hen.  VIII., 
15,  16. 


CHAPTER  III. 

TENANCY  AT  SUFFERANCE. 

Co.  LIT.,  57,  b.  There  is  a  great  diversity  between  a  ten- 
ant at  will  and  a  tenant  at  sufferance;  for  tenant  at  will  is 
alwaies  by  right,  and  tenant  at  sufferance  entreth  by  a  law- 
full  lease,  and  holdeth  over  by  wrong.  A  tenant  at  suffer- 
ance is  he  that  at  the  first  came  in  by  lawfull  demise,  and 
after  his  estate  ended  continueth  in  possession  and  wrong- 
fully holdeth  over.  As  tenant  pur  terine  d'auter  vie  con- 
tinueth in  possession  after  the  decease  of  Ce'  que  vie,  or 
tenant  for  yeares  holdeth  over  his  terme;  the  lessor  cannot 
have  an  action  of  trespasse  before  entry. 

ID.,  270,  b.  By  these  two  sections  [Lit.,  §§  459,  460] 
is  to  be  observed,  a  diversity  between  a  tenant  at  will,  and  a 
tenant  at  sufferance ;  for  a  release  to  a  tenant  at  will  is  good, 
because  betweene  them  there  is  a  possession  with  a  privity ; 
but  a  release  to  a  tenant  at  sufferance  is  void,  because  he 
hath  a  possession  without  privity.  As  if  lessee  for  yeares 
hold  over  his  terme,  &c.,  a  release  to  him  is  void,  for  that 
there  is  no  privity  betweene  them ;  and  so  are  the  books  that 
speake  of  this  matter  to  be  understood. 

2  BL.  COM.,  150.  An  estate  at  sufferance  is  where  one 
comes  into  possession  of  land  by  lawful  title,  but  keeps  it 
afterwards  without  any  title  at  all.  As  if  a  man  takes  a 
lease  for  a  year,  and  after  a  year  is  e,xpired  continues  to  hold 
the  premises  without  any  fresh  leave  from  the  owner  of  the 
estate.  Or,  if  a  man  maketh  a  lease  at  will  and  dies,  the 
estate  at  will  is  thereby  determined :  but  if  the  tenant  con- 


TENANCY    AT    SUFFERANCE.  297 

tinueth  possession,  he  is  tenant  at  sufferance.  But  no  man 
can  be  tenant  at  sufferance  against  the  king,  to  whom  no 
ladies,  or  neglect  in  not  entering  and  ousting  the  tenant  is 
ever  imputed  by  law ;  but  his  tenant,  so  holding  over,  is  con- 
sidered as  an  absolute  intruder.  But,  in  the  case  of  a  sub- 
ject, this  estate  may  be  destroyed  whenever  the  true  owner 
shall  make  an  actual  entry  on  the  lands  and  oust  the  tenant : 
for,  before  entry,  he  cannot  maintain  an  action  of  trespass 
against  the  tenant  by  sufferance,  as  he  might  against  a 
stranger :  and  the  reason  is,  because  the  tenant  being  once  in 
by  a  lawful  title,  the  law  (which  presumes  no  wrong  in  any 
man)  will  suppose  him  to  continue  upon  a  title  equally  law- 
ful ;  unless  the  owner  of  the  land  by  some  public  and  avowed 
act,  such  as  entry  is,  will  declare  his  continuance  to  be  tor- 
tious,  or,  in  common  language,  wrongful. 

Thus  stands  the  law,  with  regard  to  tenants  by  sufferance, 
and  landlords  are -obliged  in  these  cases  to  make  formal  en- 
tries upon  their  lands,  and  recover  possession  by  the  legal 
process  of  ejectment;  and  at  the  utmost,  by  the  common 
law,  the  tenant  was  bound  to  account  for  the  profits  of  the 
land  so  by  him  detained.  But  now,  by  statute  4  Geo.  II.  c. 
28,  in  case  any  tenant  for  life  or  years,  or  other  person 
claiming  under  or  by  collusion  with  such  tenant,  shall  wil- 
fully hold  over  after  the  determination  of  the  term,  and  de- 
mand made  and  notice  in  writing  given,  by  him  to  whom  the 
remainder  or  reversion  of  the  premises  shall  belong,  for  de- 
livering the  possession  thereof ;  such  person,  so  holding  over 
or  keeping  the  other  out  of  possession,  shall  pay  for  the  time 
he  detains  the  lands,  at  the  rate  of  double  their  yearly  value. 
And,  by  statute  1 1  Geo.  II.  c.  19,  in  case  any  tenant,  having 
power  to  determine  his  lease,  shall  give  notice  of  his  inten- 
tion to  quit  the  premises,  and  shall  not  deliver  up  the  posses- 
sion at  the  time  contained  in  such  notice,  he  shall  thence- 
forth pay  double  the  former  rent,  for  such  time  as  he  con- 
tinues in  possession.  These  statutes  have  almost  put  an  end 
to  the  practice  of  tenancy  by  sufferance,  unless  with  the  tacit 
consent  of  the  owner  of  the  tenement. 


298   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

51  N.  Y.  REP.,  539.  At  common  law,  a  tenant  who  held 
•over  after  the  expiration  of  his  term  became  a  tenant  by 
sufferance.  He  had  only  a  naked  possession,  and  no  estate 
which  he  could  transfer  or  transmit.  He  stood  in  no  priv- 
ity to  his  landlord,  was  not  liable  to  pay  any  rent  and  was 
not  entitled  to  any  notice  to  quit.  He  held  by  the  laches  of 
the  landlord,  who  could  enter  and  put  an  end  to  the  tenancy 
when  he  pleased.  4  Kent's  Com.  118.  This  is  still  the  law, 
except  as  modified  by  the  statute.1  At  common  law,  when  by 
the  terms  of  the  lease  the  tenancy  terminated  at  a  day  cer- 
tain, the  landlord  could  always  commence  his  action  of 
ejectment  to  recover  possession  of  his  land,  after  the  expira- 
tion of  the  lease,  without  any  notice  to  quit;  and  this  he 
could  do,  although  the  tenant  became  a  tenant  by  sufferance 
by  holding  over  the  term  without  his  permission.  It  was 
only  in  a  tenancy  from  year  to  year,  the  termination  of 
which  was  uncertain,  that  the  tenant  was^entitled  to  notice 
to  quit.  The  object  of  the  notice  was  to  give  him  informa- 
tion when  the  lease  would  terminate.  In  the  former  case 
such  notice  was  contained  in  the  lease  itself,  and  in  such  case 
I  cannot  discover  that  it  was  ever  made  the  subject  of  com- 
plaint that  the  tenant  could  be  removed  without  notice.  If 
within  the  meaning  of  our  statutes  (i  R.  S.  745,  746)  every 
tenant  holding  over  his  term  for  the  briefest  period  is  to  be 
deemed  a  tenant  by  sufferance,  and  thus  entitled  to  one 
month's  notice  to  quit,  then  every  lease  for  one  year  will  be, 
at  the  will  of  the  tenant,  practically  extended  to  a  lease  for 
thirteen  months,  as  no  proceedings  can  be  instituted  for  his 
removal  until  the  expiration  of  the  month's  notice.  It  can- 
not be  conceived  that  the  legislature,  in  a  case  where  the 
parties  have  in  the  lease  fixed  a  day  certain  for  the  termina- 
tion of  the  tenancy,  intended  that  the  tenant  may,  by  his  own 
wrong,  extend  his  holding  for  another  month ;  and  a  con- 
struction leading  to  such  a  result  should  not  be  tolerated  if  it 
can  be  avoided.  .  .  . 

The  notice  is  clearly  necessary  only  in  case  there  is  such  a 
J2  R.  S.  745;  Real  Prop.  Law,  §  198  (page  295,  supra). — ED. 


TENANCY    AT    SUFFERANCE.  299 

tenancy  at  will  or  by  sufferance  as  needs  to  be  terminated. 
Such  a  tenancy  is  not  created  within  the  meaning  of  the 
statute  by  the  tenant  simply  holding  over  his  term  without 
the  assent  of  his  landlord.  To  entitle  the  tenant  who  holds 
over  a  definite  term  to  notice,  the  holding  over  must  be  con- 
tinued for  such  a  length  of  time  after  the  expiration  of  the 
term,  and  under  such  circumstances  as  to  authorize  the  im- 
plication of  assent  on  the  part  of  the  landlord  to  such  con- 
tinuance. In  such  case  the  tenancy  existing  by  the  implied 
assent  of  the  landlord  ought  to  be  terminated  before  the  ten- 
ant can  be  removed,  and  in  such  case  the  tenant  is  a  tenant 
by  sufferance  within  the  meaning  of  the  statute,  and  cannot 
be  removed  by  summary  proceedings  or  action  of  ejectment 
without  the  previous  notice  to  quit. — Per  Earl,  C,  in  Smith 
v.  Lit  tie  field  (1873). 


///.     Conditional  Estates. 

LIT.,  §  325.  Estates  which  men  have  in  lands  or  tene- 
ments upon  condition  are  of  two  sorts,  viz.,  either  they  have 
estate  upon  condition  in  deed,  or  upon  condition  in  law,  &c. 
Upon  condition  in  deed  is,  as  if  a  man  by  deed  indented 
enfeoffes  another  in  fee-simple,  reserving  to  him  and  his 
heires  yearely  a  certaine  rent  payable  at  one  feast  or  divers 
feasts  per  annum,  on  condition  that  if  the  rent  be  behind, 
&c.,  that  it  shall  bee  lawfull  for  the  feoff  or  and  his  heires 
into  the  same  lands  or  tenements  to  enter,  &c.  And  if  it 
happen  the  rent  to  be  behind  by  a  week  after  any  day  of 
payment  of  it,  or  by  a  moneth  after  any  day  of  payment  of 
it,  or  by  halfe  a  yeare,  &c.,  that  then  it  shall  be  lawfull  to  the 
feoffor  and  his  heires  to  enter,  &c.  In  these  cases  if  the  rent 
be  not  paid  at  such  time  or  before  such  time  limited  and 
specified  within  the  condition  comprised  in  the  indenture, 
then  may  the  feoffor  or  his  heires  enter  into  such  lands  or 
tenements,  and  them  in  his  former  estate  to  have  and  hold, 
and  the  feoffee' quite  to  ouste  thereof.  And  it  is  called  an 
estate  upon  condition,  because  that  the  state  of  the  feoffee  is 
defeasible,  if  the  condition  bee  riot  performed,  &c. 

§  326.  In  the  same  manner  it  is  if  lands  be  given  in  taile, 
or  let  for  terme  of  life  or  of  yeares,  upon  condition,  &c. 

Co.  LIT.,  20 1,  a.  Littleton  having  before  spoken  of  es- 
tates absolute  now  beginneth  to  intreate  of  estates  upon 
condition.  And  a  condition  annexed  to  the  realtie,  whereof 
Littleton  here  speaketh  in  the  legall  understanding,  est  mo- 
dus, a  qualitie  annexed  by  him  that  hath  estate,  interest,  or 
right,  to  the  same,  whereby  an  estate,  &c.,  may  either  be  de- 


CONDITIONAL    ESTATES.  30! 

feated,  or  enlarged,  or  created  upon  an  incertaine  event. 
Conditio  dicitur  cum  quid  in  casum  incertum  qui  potest 
tendere  ad  esse  aut  non  esse  confertur. 

202,  a.  Regularly  it  is  true  that  he  that  entreth  for  a 
condition  broken  shall  be  seised  in  his  first  estate,  or  of  that 
estate  which  hee  had  at  the  time  of  the  estate  made  upon 
condition,  but  yet  this  fayleth  in  many  cases. 

LIT.,  §  347.  The  second  thing  is,  that  no  entry  nor  re-entry 
(which  is  all  one)  may  be  reserved  or  given  to  any  person, 
but  only  to  the  feoffor,  or  to  the  donor,  or  to  the  lessor,  or  to 
their  heires :  and  such  re-entrie  cannot  be  given  to  any  other 
person.  For  if  a  man  letteth  land  to  another  for  tearme  of 
life  by  indenture,  rendring  to  the  lessor  and  to  his  heires  a 
certaine  rent,  and  for  default  of  payment  a  re-entry,  &c.,  if 
afterward  the  lessor  by  a  deed  granteth  the  reversion  of  the 
land  to  another  in  fee,  and  the  tenant  for  terme  of  life  at- 
torne,  &c.,  if  the  rent  be  after  behind,  the  grantee  of  a  rever- 
sion may  distreine  for  the  rent,  because  that  the  rent  is  in- 
cident to  the  reversion;  but  he  may  not  enter  into  the  land, 
and  ouste  the  tenant,  as  the  lessor  might  have  done  or  his 
heires,  if  the  reversion  had  beene  continued  in  them,  &c. 
And  in  this  case  the  entrie  is  taken  away  for  ever;  for  the 
grantee  of  the  reversion  cannot  enter  causa  qua  supra.  And 
the  lessor  nor  his  heires  cannot  enter ;  for  if  the  lessor  might 
enter,  then  hee  ought  to  be  in  his  former  state,  &c.,  and  this 
may  not  bee,  because  hee  hath  aliened  from  him  the  rever- 
sion. 

Co.  LIT.,  214,  b.  Hereupon  is  to  bee  collected  divers 
diversities.  First,  betweene  a  condition  that  requireth  a  re- 
entrie,  and  a  limitation  that  ipso  facto  determineth  the  estate 
without  any  entry.  Of  this  first  sort  no  stranger;  as  Little- 
ton saith,  shall  take  any  advantage,  as  hath  beene  said.  But 
of  limitations  it  is  otherwise.  As  if  a  man  make  a  lease 
quousque,  that  is,  untill  /.  S.  come  from  Rome,  the  lessor 
grant  the  reversion  over  to  a  stranger,  /.  S.  comes  from 


3O2   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

Rome,  the  grantee  shall  take  advantage  of  it  and  enter,  be- 
cause the  estate  by  the  expresse  limitation  was  determined. 

So  it  is  if  a  man  make  a  lease  to  a  woman  quamdiu  casta 
vixerit,  or  if  a  man  make  a  lease  for  life  to  a  widow,  si 
tamdiu  in  pura  viduitate  viveret.  So  it  is  if  a  man  make  a 
lease  for  a  100  yeares  if  the  lessee  live  so  long,  the  lessor 
grants  over  the  reversion,  the  lessee  dies,  the  grantee  may 
enter,  causa  qua  supra. 

2.  Another  diversitie  is  betweene  a  condition  annexed  to 
a  freehold,  and  a  condition  annexed  to  a  lease  for  years.  For 
if  a  man  make  a  gift  in  taile  for  a  lease  for  life  upon  condi- 
tion, that  if  the  donee  or  lessee  goeth  not  to  Rome  before 
such  a  day  the  gift  or  lease  shall  cease  or  be  void,  the 
grantee  of  the  reversion  shall  never  take  advantage  of  this 
condition,  because  the  estate  cannot  cease  before  an  entrie; 
but  if  the  lease  had  beene  but  for  yeares,  there  the  grantee 
should  have  taken  advantage  of  the  like  condition,  because 
the  lease  for  yeares  ipso  facto  by  the  breach  of  the  condition 
without  any  entry  was  void ;  for  a  lease  for  yeares  may  be- 
gin without  ceremony,  and  so  may  end  without  ceremony ; 
but  an  estate  of  freehold  cannot  begin  nor  end  without  cere- 
mony. And  of  a  voide  thing  an  estranger  may  take  benefit, 
but  not  of  a  voidable  estate  by  entry. 

215,  a.  Another  diversitie  is  betweene  conditions  in  deed, 
whereof  sufficient  hath  beene  said  before,  and  conditions 
in  law.  As  if  a  man  make  a  lease  for  life,  there  is  a 
condition  in  law  annexed  unto  it,  that  if  the  lessee  doth 
make  a  greater  estate,  &c.,  that  then  the  lessor  may  enter. 
Of  this  and  the  like  conditions  in  law,  which  doe  give  an 
entrie  to  the  lessor,  the  lessor  himselfe  and  his  heires  shall 
not  onely  take  benefit  of  it,  but  also  his  assignee  and  the 
lord  by  escheat,  every  one  for  the  condition  in  law  broken  in 
their  owne  time.  Another  diversity  there  is  betweene  the 
judgement  of  the  common  law,  whereof  Littleton  wrote, 
and  the  law  at  this  day  by  force  of  the  statute  of  32  H.  8. 
cap.  34.  For  by  the  common  law  no  grantee  or  assigne 
of  the  reversion  could  (as  hath  been  said)  take  advantage 


CONDITIONAL    ESTATES.  303 

of  a  re-entrie  by  force  of  any  condition.  For  at  the  common 
law,  if  a  man  had  made  a  lease  for  life  reserving  a  rent,  &c., 
and  if  the  rent  be  behind  a  re-entrie,  and  the  lessor  grant  the 
reversion  over,  the  grantee  should  take  no  benefit  of  the  con- 
dition, for  the  cause  before  rehearsed.  But  now  by  the  said 
statute  of  32  H.  8.  the  grantee  may  take  advantage  thereof, 
and  upon  demand  for  the  rent,  and  non-payment,  he  may 
re-enter.  By  which  act  it  is  provided,  that  as  well  every 
person  which  shall  have  any  grant  of  the  king  of  any  rever- 
sion, &c.,  of  any  lands,  &c.,  which  pertained  to  monasteries, 
&c.,  as  also  all  other  persons  being  grantees  or  assignees, 
&c.,  to  or  by  any  other  person  or  persons,  and  their  heires, 
executors,  successors,  and  assignees,  shall  have  like  advan- 
tage against  the  lessees,  &c.,  by  entry  for  non-payment  of 
the  rent,  or  for  doing  of  waste  or  other  forfeiture,  &c.,  as 
the  said  lessors  or  grantors  themselves  ought  or  might  have 
had. 

ID.,  233,  b.  As  to  conditions  in  law,  you  shall  understand 
they  bee  of  two  natures,  that  is  to  say,  by  the  common  law, 
and  by  statute.  And  those  by  the  common  law  are  of  two 
natures,  that  is  to  say,  the  one  is  founded  upon  skill  and 
confidence,  the  other  without  skill  or  confidence ;  upon  skill 
and  confidence,  as  here  the  office  of  parkership,  and  other 
offices  in  the  next  section  mentioned  and  the  like. 

Touching  conditions  in  law  without  skill,  &c.,  some  be  by 
the  common  law,  and  some  by  the  statute.  By  the  common 
law  as  to  every  estate  of  tenant  by  the  curtesie,  tenant  in 
tayle  after  possibilitie  of  issue  extinct,  tenant  in  dower,  ten- 
ant for  life,  tenant  for  yeares,  tenant  by  statute  merchant  or 
staple,  tenant  by  elegit,  gardian,  &c.,  there  is  a  condition  in 
law  secretly  annexed  to  their  estates,  that  if  they  alien  in  fee, 
&c.,  that  he  in  the  reversion  or  the  remainder  may  enter,  et 
sic  de  similibus,  or  if  they  claime  a  greater  estate  in  court  of 
record,  and  the  like. 

LIT.,  §  360.  Also,  if  a  feoffment  be  made  upon  this 
condition,  that  the  feoffee  shall  not  alien  the  land  to  any, 


304   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

this  condition  is  void,  because  when  a  man  is  infeoffed  of 
lands  or  tenements,  he  hath  power  to  alien  them  to  any  per- 
son by  the  law.  For  if  such  a  condition  should  bee  good, 
then  the  condition  should  oust  him  of  all  the  power  which 
the  law  gives  him,  which  should  bee  against  reason,  and 
therefore  such  a  condition  is  voide. 

§  361.  But  if  the  condition  be  such,  that  the  feoffee  shal 
not  alien  to  such  a  one,  naming  his  name,  or  to  any  of  his 
heires  or  of  the  issues  of  such  a  one,  &c.,  or  the  like,  which 
conditions  doe  not  take  away  all  power  of  alienation  from 
the  feoffee,  &c.,  then  such  condition  is  good. 

SHEP.  TOUCHSTONE,  120.  The  nature  of  an  express  con- 
dition annexed  to  an  estate  in  general  is  this ;  that  it  cannot 
be  made  by,  nor  reserved  to,  a  stranger ;  but  it  must  be  made 
by,  and  reserved  to,  him  that  doth  make  the  estate.  And  it 
cannot  be  granted  over  to  another,  except  it  be  to  and  with 
the  land  or  thing  unto  which  it  is  annexed  and  incident. 
And  so  it  is  not  grantable  in  all  cases ;  for  the  estates  of  both 
the  parties  are  so  suspended  by  the  condition  that  neither  of 
them  alone  can  well  make  an  estate,  or  charge,  of  or  upon 
the  land ;  for  the  party  that  doth  depart  with  the  estate  and 
hath  nothing  but  a  possibility  to  have  the  thing  again  upon 
the  performance  or  breach  of  the  condition,  cannot  grant  or 
charge  the  thing  at  all.  And  if  he  that  hath  the  estate  grant 
or  charge  it,  it  will  be  subject  to  the  condition  still ;  for  the 
condition  doth  always  attend  and  wait  upon  the  estate  or 
thing  whereunto  it  is  annexed :  so  that  although  the  same 
do  pass  through  the  hands  of  an  hundred  men,  yet  it  is  sub- 
ject to  a  condition  still ;  and  albeit  some  of  them  be  persons 
privileged  in  divers  cases,  as  the  King,  infants,  and  women 
covert,  yet  they  also  are  bound  by  the  condition.  And  a 
man  that  comes  to  the  thing  by  wrong,  as  a  disseisor  of  land 
whereof  there  is  an  estate  upon  condition  in  being,  shall 
hold  the  same  subject  to  the  condition  also.  And  when  the 
condition  is  broken  or  performed,  &c.,  the  whole  estate  shall 
be  defeated,  so  that  if  there  be  a  lease  for  life  made  by  deed 


CONDITIONAL    ESTATES.  305 

and  not  by  will,  the  remainder  over  in  fee,  on  condition  that 
the  lessee  for  life  shall  pay  ten  pounds  to  the  lessor;  if  the 
lessee  pay  not  this  ten  pounds,  the  estate  in  remainder  is 
avoided  also.  .  .  .  And  further  when  he  that  hath 
right  doth  re-enter  by  force  of  such  condition,  he  shall  avoid 
all  charges  and  incumbrances  put  upon  the  land  after  the 
condition  made;  for  he  that  doth  enter  into  land  by  force 
of  such  a  condition  must  have  it  again  in  the  same  plight 
as  it  was  when  he  parted  with  it.  And  finally,  a  condition 
for  the  most  part  will  not  determine  the  estate  without  entry 
or  claim.  So  that  howsoever  a  limitation  hath  much  affinity 
and  agreement  with  a  condition,  and  therefore  it  is  some- 
times called  a  condition  in  law,  both  of  them  do  determine 
an  estate  in  being  before,  and  a  limitation  cannot  make  an 
estate  to  be  void  as  to  one  person,  and  good  as  to  another ; 
as  if  a  gift  be  made  in  taile  to  one  and  his  heires  males,  until 
he  do  such  a  thing,  and  then  his  estate  to  cease  and  go  to 
another;  yet  herein  they  differ,  i.  A  stranger  may  take  ad- 
vantage of  an  estate  determined  by  limitation,  and  so  he 
cannot  upon  a  condition.  2.  A  limitation  doth  always  de- 
termine the  estate  without  entry  or  claim,  and  so  doth  not 
a  condition. 

2  BL.  COM.,  152-157.  Besides  the  several  divisions  of  es- 
tates, in  point  of  interest,  which  we  have  considered  in  the 
three  preceding  chapters,  there  is  also  another  species  still 
remaining,  which  is  called  an  estate  upon  condition;  being 
such  whose  existence  depends  upon  the  happening  or  not 
happening  of  some  uncertain  event,  whereby  the  estate  may 
be  either  originally  created,  or  enlarged,  or  finally  defeated. 
And  these  conditional  estates  I  have  chosen  to  reserve  till 
last,  because  they  are  indeed  more  properly  qualifications  of 
other  estates  than  a  distinct  species  of  themselves ;  seeing 
that  any  quantity  of  interest,  a  fee,  a  freehold,  or  a  term  of 
years,  may  depend  upon  these  provisional  restrictions.  Es- 
tates, then,  upon  condition  thus  understood,  are  of  two 
sorts :  i.  Estates  upon  condition  implied.  2.  Estates  upon 


306   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

condition  expressed:  under  which  last  may  be  included,  3. 
Estates  held  in  vadio,  gage,  or  pledge.  4.  Estates  by  stat- 
ute merchant  or  statute  staple.  5.  Estates  held  by  elegit. 

1.  Estates  upon    condition  implied  in    law  are  where    a 
grant  of  an  estate  has  a  condition  annexed  to  it  inseparably, 
from  its  essence  and  constitution,  although  no  condition  be 
expressed  in  words.    As  if  a  grant  be  made  to  a  man  of  an 
office,  generally,  without  adding  other  words ;  the  law  tacit- 
ly annexes  hereto  a  secret  condition,  that  the  grantee  shall 
duly  execute  his  office,  on  breach  of  which  condition  it  is 
lawful  for  the  grantor,  or  his  heirs,  to  oust  him,  and  grant 
it  to  another  person.    For  an  office,  either  public  or  private, 
may  be  forfeited  by  mis-user  or  non-user,  both  of  which  are 
breaches  of  this  implied  condition.     .     .     .     Upon  the  same 
principle  proceed  all  the  forfeitures  which  are  given  by  law 
of  life  estates  and  others,  for  any  acts  done  by  the  tenant 
himself  that  are  incompatible   with   the  estate    which    he 
holds.    As  if  tenants  for  life  or  years  enfeoff  a  stranger  in 
fee-simple :  this  is,  by  the  common  law,  a  forfeiture  of  their 
several  estates;  being  a  breach  of  the  condition  which  the 
law  annexes  thereto,  viz.,  that  they  shall  not  attempt  to 
create  a  greater  estate  than  they  themselves  are  entitled  to. 
So  if  any  tenants  for  years,  for  life,  or  in  fee  commit  a  fel- 
ony, the  king  or  other  lord  of  the  fee  is  entitled  to  have  their 
tenements,  because  their  estate  is  determined  by  the  breach 
of  the  condition,  "  that  they  shall  not  commit  felony,"  which 
the  law  tacitly  annexes  to  every  feodal  donation. 

2.  An  estate  on  condition  expressed  in  the  grant  itself  is 
where  an  estate  is  granted,  either  in  fee-simple  or  otherwise, 
with  an  express  qualification  annexed,  whereby  the  estate 
granted  shall  either  commence,  be  enlarged,  or  be  defeated, 
upon  performance  or  breach  of  such  qualification  or  condi- 
tion.    These  conditions  are  therefore  either  precedent,  or 
subsequent.     Precedent  are  such  as  must  happen  or  be  per- 
formed before  the  estate  can  vest  or  be  enlarged :  subse- 
quent are  such,  by  the  failure  or  non-performance  of  which 
an  estate  already  vested  may  be  defeated.    Thus,  if  an  estate 


CONDITIONAL    ESTATES.  307 

for  life  be  limited  to  A.  upon  his  marriage  with  B.,  the 
marriage  is  a  precedent  condition,  and  till  that  happens  no 
estate  is  vested  in  A.  Or,  if  a  man  grant  to  his  lessee  for 
years,  that  upon  payment  of  a  hundred  marks  within  the 
term  he  shall  have  the  fee,  this  also  is  a  condition  precedent, 
and  the  fee-simple  passeth  not  till  the  hundred  marks  be 
paid.  But  if  a  man  grants  an  estate  in  fee-simple,  reserving 
to  himself  and  his  heirs  a  certain  rent ;  and  that  if  such  rent 
be  not  paid  at  the  time  limited,  it  shall  be  lawful  for  him  and 
his  heirs  to  re-enter,  and  avoid  the  estate :  in  this  case  the 
grantee  and  his  heirs  have  an  estate  upon  condition  subse- 
quent, which  is  defeasible  if  the  condition  be  not  strictly  per- 
formed. To  this  class  may  also  be  referred  all  base  fees, 
and  fee-simples  conditional  at  the  common  law.  Thus  art 
estate  to  a  man  and  his  heirs,  tenants  of  the  manor  of  Dalef 
is  an  estate  on  condition  that  he  and  his  heirs  continue  ten- 
ants of  that  manor.  And  so,  if  a  personal  annuity  be 
granted  at  this  day  to  a  man  and  the  heirs  of  his  body,  as 
this  is  no  tenement  within  the  statute  of  Westminster  the 
Second,  it  remains,  as  at  common  law,  a  fee-simple  on  con- 
dition that  the  grantee  has  heirs  of  his  body.  Upon  the 
same  principle  depend  all  the  determinable  estates  of  free- 
hold, which  we  mentioned  in  the  eighth  chapter :  as  du~ 
rante  viduitate,  etc.;  these  are  estates  upon  condition  that  the 
grantees  do  not  marry,  and  the  like.  And,  on  the  breach  of 
any  of  these  subsequent  conditions,  by  the  failure  of  these 
contingencies ;  by  the  grantee's  not  continuing  tenant  of  the 
manor  of  Dale,  by  not  having  heirs  of  his  body,  or  by  not 
continuing  sole ;  the  estates  which  were  respectively  vested 
in  each  grantee  are  wholly  determinable  and  void. 

A  distinction  is,  however,  made  between  a  condition  ire 
deed  and  a  limitation,  which  Littleton1  denominates  also  a 
condition  in  /aw.  For  when  an  estate  is  so  expressly  con- 
fined and  limited  by  the  words  of  its  creation,  that  it  cannot 
endure  for  any  longer  time  than  till  the  contingency  hap- 
pens upon  which  the  estate  is  to  fail,  this  is  denominated  a 

1  §  380.    I   Inst.  234. 


308   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

limitation,  as  when  land  is  granted  to  a  man  so  long  as  he 
is  parson  01  Dale,  or  ivhile  he  continues  unmarried,  or  until 
out  of  the  rents  and  profits  he  shall  have  made  £ 500,  and  the 
like.  In  such  case  the  estate  determines  as  soon  as  the  con- 
tingency happens  (when  he  ceases  to  be  parson,  marries  a 
wife,  or  has  received  the  £500)  and  the  next  subsequent 
estate,  which  depends  upon  such  determination,  becomes  im- 
mediately vested,  without  any  act  to  be  done  by  him  who  is 
next  in  expectancy.  But  when  an  estate  is,  strictly  speak- 
ing, upon  condition  in  deed  (as  if  granted  expressly  upon 
condition  to  be  void  upon  the  payment  of  £40  by  the  grantor, 
or  so  that  the  grantee  continues  unmarried,  or  provided  he 
goes  to  York,  etc.),  the  law  permits  it  to  endure  beyond  the 
time  when  such  contingency  happens,  unless  the  grantor  or 
his  heirs  or  assigns  take  advantage  of  the  breach  of  the  con- 
dition, and  make  either  an  entry  or  a  claim  in  order  to  avoid 
the  estate.  Yet,  though  strict  words  of  condition  be  used  in 
the  creation  of  the  estate,  if  on  breach  of  the  condition  the 
estate  be  limited  over  to  a  third  person,  and  does  not  im- 
mediately revert  to  the  grantor  or  his  representatives  (as  if 
an  estate  be  granted  by  A.  to  B.,  on  condition  that  within 
two  years  B.  intermarry  with  C.,  and  on  failure  thereof  then 
to  D.  and  his  heirs),  this  the  law  construes  to  be  a  limitation 
and  not  a  condition:  because  if  it  were  a  condition,  then, 
upon  the  breach  thereof,  only  A.  or  his  representatives  could 
avoid  the  estate  by  entry,  and  so  D.'s  remainder  might  be 
defeated  by  their  neglecting  to  enter ;  but,  when  it  is  a  limi- 
tation, the  estate  of  B.  determines,  and  that  of  D.  com- 
mences, and  he  may  enter  on  the  lands  the  instant  that  the 
failure  happens.  So  also,  if  a  man  by  his  will  devises  land 
to  his  heir  at  law,  on  condition  that  he  pays  a  sum  of  money, 
and  for  non-payment  devises  it  over,  this  shall  be  considered 
as  a  limitation ;  otherwise  no  advantage  could  be  taken  of 
the  non-payment,  for  none  but  the  heir  himself  could  have 

entered  for  a  breach  of  condition. 

*  *  *  *  *  * 

These  express  conditions,  if  they  be  impossible  at  the  time 


CONDITIONAL   ESTATES.  309 

of  their  creation,  or  afterward  become  impossible  by  the  act 
of  God  or  the  act  of  the  feoffor  himself,  or  if  they  be  con- 
trary to  law,  or  repugnant  to  the  nature  of  the  estate,  are 
void.  In  any  of  which  cases,  if  they  be  conditions  subse- 
quent, that  is,  to  be  performed  after  the  estate  is  vested,  the 
estate  shall  become  absolute  in  the  tenant.  As,  if  a  feoff- 
ment  be  made  to  a  man  in  fee-simple,  on  condition  that  un- 
less he  goes  to  Rome  in  twenty- four  hours;  or  unless  he 
marries  with  Jane  S.  by  such  a  day  (within  which  time  the 
woman  dies,  or  the  feoffor  marries  her  himself)  ;  or  unless 
he  kills  another ;  or  in  case  he  alienes  in  fee ;  that  then  and 
in  any  of  such  cases  the  estate  shall  be  vacated  and  deter- 
mine :  here  the  condition  is  void,  and  the  estate  made  abso- 
lute in  the  feoffee.  For  he  hath  by  the  grant  the  estate 
vested  in  him,  which  shall  not  be  defeated  afterward  by  a 
condition  either  impossible,  illegal,  or  repugnant.  But  if 
the  condition  be  precedent,  or  to  be  performed  before  the 
estate  vests,  as  a  grant  to  a  man  that,  if  he  kills  another  or 
goes  to  Rome  in  a  day,  he  shall  have  an  estate  in  fee ;  here, 
the  void  condition  being  precedent,  the  estate  which  depends 
thereon  is  also  void,  and  the  grantee  shall  take  nothing  by 
the  grant;  for  he  hath  no  estate  until  the  condition  be  per- 
formed. 

i  SHARS.  &  B.,  LEAD.  CAS.,  123-126.  There  are  certain 
technical  words  proper  in  themselves  to  make  a  condition; 
these  are  sub  conditione,  proviso,,  itaquod  (Co.  Lit.,  203,  &) 
and  quod  si  contingat  if  followed  by  a  clause  of  re-entry  (Id. 
204,  b.,  Stanley  v.  Colt,  5  Wall.  119).  .  .  .  But  these 
words  are  not  necessary  to  create  a  condition ;  it  may  be 
created  by  any  words  which  show  a  clear,  unmistakable  in- 
tention on  the  part  of  a  grantor  or  devisor  to  create  an 
estate  on  condition,  regard  being  had  to  the  whole  of  the 
deed  or  will  in  which  they  occur.  ...  A  provision  for 
re-entry  is  a  distinctive  characteristic  of  an  estate  on  con- 
dition, and  where  in  a  deed  the  grantor  has  reserved  the 
right  of  re-entry,  upon  the  happening  of  any  specified  event, 


3IO   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

in  order  to  revest  in  himself  his  former  estate,  there  the 
estate  granted  will  be  held  to  be  one  upon  condition  (At- 
torney-General v.  Merrimack  Manufacturing  Co.,  14  Gray, 
612),  and  this  has  been  held  where  the  provision  for  re- 
entry was  appended  to  words  of  covenant  (Gibert  v.  Pet- 
eler,  38  N.  Y.  165). 

As  the  technical  words  above  mentioned  are  not  abso- 
lutely essential  to  the  existence  of  a  condition,  so  their  use 
does  not  necessarily  create  one,  but  may  be  so  controlled 
by  the  context  of  the  instrument  in  which  the  technical 
words  occur  as  to  fail  of  that  effect.  .  .  .  And  what- 
ever words  are  relied  on  as  creating  a  condition  must  not 
only  be  such  as  of  themselves  would  create  a  condition,  but 
must  be  so  connected  with  the  grant  as  to  qualify  or  restrain 
it.  ...  As  the  policy  of  law  is  to  render  the  alienation 
and  transfer  of  property  as  free  as  possible,  conditions 
are  not  favored  in  law ;  and,  therefore,  whenever  words  can 
be  construed  indifferently  as  a  condition,  reservation,  or  a 
covenant,  the  tendency  of  the  courts  is  to  construe  them  as 

either  of  the  latter  rather  than  as  the  former. 

******* 

ID.,  186-189.  It  is  sometimes  a  little  difficult,  from  the 
mere  phraseology  of  a  provision,  especially  one  occurring  in 
a  will,  to  determine  whether  it  creates  an  estate  on  condition 
or  a  conditional  limitation ;  while  certain  words  are  pe- 
culiarly appropriate  to  one  or  the  other,  yet  there  are  words 
which  have  no  absolute  force,  and  may  be  used  for  either 
one  or  the  other,  and  while  the  limitation  over  is  generally 
looked  to  as  determining  the  intent  of  the  instrument,  yet 
there  may  be  a  good  conditional  limitation  without  a  devise 
over.  McCullough's  Appeal,  12  Pa.  St.  197.  As,  however, 
there  is  a  wide  difference  between  the  nature  of  an  estate 
on  condition  and  that  of  one  on  a  conditional  limitation,  and 
especially  with  reference  to  the  manner  of  their  being  ter- 
minated, it  becomes  of  importance  to  properly  distinguish 
provisions  creating  the  one  or  the  other. 

The  best  general  rule  can  be  derived  from  considering  the 


CONDITIONAL    ESTATES.  3!  I 

great  distinction  between  the  two  estates  when  created. 
The  estate  on  condition  has  attached  to  it  something  that 
must  be  done  to  cause  it  to  vest  or  to  prevent  it  from  being 
divested,  or  that  must  be  left  undone  on  peril  of  its  de- 
struction, upon  the  breach  of  which  condition  the  estate  be- 
comes voidable,  and  the  grantor  or  his  heirs  may  destroy  it 
by  entry  or  some  other  positive  act.  The  estate  on  a  con- 
ditional limitation,  on  the  other  hand,  has  a  fixed  period, 
fixed  by  the  happening  of  an  event,  beyond  which  it  cannot 
continue;  the  instant  the  event  happens,  the  estate  is  at  an 
end,  and  the  right  of  the  tenant  is  absolutely  and  finally 
gone,  without  any  further  act  on  the  part  of  any  one.  From 
this  consideration  may  then  be  derived  the  general  rule  that 
whenever  the  intent  of  a  deed  or  will  in  attaching  a  condi- 
tion to  a  gift  or  devise  of  land  is  to  compel  or  to  prevent  the 
performance  of  a  certain  act,  there  the  instrument  should  be 
construed  as  creating  an  estate  on  condition ;  but  where  the 
intent  is  to  fix  certain  bounds  to  the  length  of  existence  of 
an  estate,  there  the  instrument  should  be  construed  as  mak- 
ing a  conditional  limitation. 

The  words  ordinarily  used  in  creating  a  condition  are,  as 
we  have  seen,  "  provided,"  ({  so  that,"  "  upon  condition,"  etc. 
(ante,  p.  123);  while  the  terms  "so  long  as,"  "while," 
"  during,"  "  until,"  are  words  ordinarily  indicative  of  a  con- 
ditional limitation.  .  .  .  The  intent  of  the  words,  as 
above  given,  is  not,  however,  inflexible,  and  there  are  in- 
stances where  the  word  "  provided  "  has  been  interpreted  as 
making  a  conditional  limitation.  A  devise  to  R.  and  /.  of 
one-third,  each,  of  certain  land  in  fee,  and  to  W ' .  of  the  re- 
maining one-third,  and  "  at  the  death  of  W.  his  share  to  be 
equally  divided  between  R.  and  J .,  with  this  provision,  in 
case  the  said  W.  should  ever  recover  from  the  present 
malady  under  which  he  now  labors  (insanity),  then  he  is  to 
hold  all  the  property  devised  to  him  for  his  own  use  and  ben- 
efit," has  been  held  to  give  an  estate  to  arise  by  way  of  con- 
ditional limitation.  Montgomery  v.  Petriken,  29  Pa.  St. 
1 1 8.  And  there  is  even  an  instance  of  the  words  "upon 


312   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

condition,"  taken  in  connection  with  the  rest  of  a  deed,  mak- 
ing a  conditional  limitation.  In  the  recent  case  of  Camp  v. 
Cleary,  Supreme  Court  of  Appeals  of  Virginia,  January 
term,  1882,  13  Reporter,  381,  a  grantor  conveyed  by  deed 
of  gift,  to  his  grandson,  three  pieces  of  ground,  on  one  of 
which  pieces  stood  a  mausoleum,  and  the  gift  was  "  upon 
the  condition  that  if  he  (the  grantee)  shall  ever  .  .  . 
in  any  way  whatsoever  alienate  or  dispose  of  the  said  last- 
mentioned  piece  of  land,  or  any  part  thereof,  this  deed  shall 
cease  and  be  void,  and  this  last-mentioned  piece  of  land, 
with  the  other  two  lots  conveyed  to  him  in  fee,  shall  revert 
to  and  rest  in  his  sister  E.  and  her  heirs  forever."  It  was 
argued  that  this  presented  the  case  of  a  condition  in  re- 
straint of  alienation,  and  therefore  void ;  but  the  Court  held 
that  it  was  the  case  of  a  conditional  limitation,  and  therefore 
not  open  to  the  objection  urged  against  its  validity. 

*  *  :):  *  *  *  * 

The  most  material  difference  between  a  condition  and  a 
conditional  limitation  has  been  already  adverted  to;  it  is 
this,  that  to  render  a  condition  effective  to  terminate  the 
estate  to  which  it  is  attached,  it  must  be  taken  advantage  of 
by  some  act,  and  this  can  be  done  only  by  the  grantor  or  his 
heirs,  while  on  the  expiration  of  an  estate  by  the  limitation 
it  at  once  ceases,  and  the  next  estate  in  expectancy  at  once 
vests ;  .  .  .  and  a  stranger  may  take  advantage  of  the 
recurrence  of  the  contingency  on  which  the  estate  is  lim- 
ited. .  .  .  This  distinction  was  originally  introduced 
"  to  get  rid  of  the  embarrassment  arising  from  the  rule  of 
the  ancient  common  law  that  an  estate  could  not  be  limited 
to  a  stranger  upon  an  event  which  went  to  abridge  or  destroy 
an  estate  previously  limited.  A  conditional  limitation  is 
therefore  of  a  mixed  nature,  partaking  both  of  a  condition 
and  of  a  limitation :  of  a  condition  because  it  defeats  an  es- 
tate previously  limited,  and  of  a  limitation  because  upon 
the  happening  of  the  contingency  the  estate  passes  to  the 
person  having  the  next  expectant  interest  without  entry  or 
claim."  Bigelow,  J.,  in  Proprietors  of  Church  v.  Grant, 


CONDITIONAL    ESTATES.  313 

supra.  The  design  of  the  rule  is  to  carry  out  the  intent  of 
the  grantor  or  devisor,  for  if  the  estate  over  could  not  vest  in 
possession  in  the  grantee  thereof  without  some  act  of  the 
heirs  of  the  grantor,  the  grantee  might  very  possibly  never 
receive  the  benefit  intended  for  him.  Den  ex  d.  Smith  v. 
Hance,  6  Hals.  244. 

ID.,  127-131.  A  condition  may  be  made  of  almost  any- 
thing that  is  not  illegal  or  unreasonable,  on  the  principle 
that  the  owner  of  land,  who  is  not  obliged  to  transfer  it  at 
all,  may  attach  to  its  transfer  such  conditions  and  restric- 
tions as  he  pleases,  and  in  view  of  which  the  grantee  takes 
the  land,  so  long  as  they  are  not  in  contravention  of  any 
policy  of  law.  .  .  . 

While,  however,  great  liberty  is  allowed  in  the  crea- 
tion of  conditions,  there  are,  nevertheless,  some  conditions 
and  restrictions  which  the  law  prohibits  as  being  con- 
trary to  public  policy  or  as  being  repugnant  to  the  estate 
granted. 

First,  it  may  be  stated  that  a  condition  in  general  restraint 
of  marriage  is  bad  as  against  public  policy  and  is  incapable 
of  enforcement;  but  to  render  a  condition  in  restraint  of 
marriage  void,  it  must  be  in  fact  general,  or  at  least  unrea- 
sonable, and  a  condition  that  a  person  shall  not  marry  before 
attaining  a  certain  age,  provided  the  age  fixed  be  not  an  un- 
reasonable one,  is  a  good  condition.  Shackelford  v.  Hall,  19 

111.212.     .     .     . 

Conditions  in  general  restraint  of  alienation  are  void, 
both  as  contrary  to  the  policy  of  law  in  this  country,  and  as 
repugnant  to  the  estate  granted,  as  said  by  Littleton,  sec. 
360:  "Also,  if  a  feoffment  be  made  upon  this  condition  that 
the  feoffee  shall  not  alien  the  land  to  any,  this  condition  is 
void,  because  when  a  man  is  enfeoffed  of  lands  or  tenements, 
he  hath  power  to  alien  them  to  any  person  by  the  law.  For 
if  such  a  condition  should  be  good,  then  the  condition  should 
oust  him  of  all  power  which  the  law  gives  him,  which 
should  be  against  reason,  and  therefore  such  a  condition  is 
void,"  and,  Coke  adds,  "and  the  like  law  is  of  a  devise  in  fee 


3 14   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

upon  condition  that  the  devisee  shall  not  alien,  the  condition 
is  void."  .  .  . 

The  law  at  the  present  day  is  the  same,  and  may  be  stated 
to  be  that  a  condition  in  general  restraint  of  alienation,  or 
that  the  grantee  shall  not  alien  during  his  life,  is  void.  With 
regard  to  conditions  imposing  partial  restraints  upon  aliena- 
tion, the  authorities  are,  however,  not  at  one.  A  long  line 
of  cases  holds  that  a  condition  imposing  a  partial  restraint 
as  to  time,  so  long  as  the  time  is  not  unreasonably  long,  will 
be  sustained.  Cornelius  v.  Ivins,  2  Dutch.  376.  .  .  . 

ID.,  136.  An  estate  granted  on  condition,  until  it  is  for- 
feited for  a  breach  thereof,  differs  in  no  respect  from  an 
estate  absolute  of  the  same  extent,  and  may  be  used  and  en- 
joyed in  precisely  the  same  manner,  except  so  far  as  the  con- 
dition itself  expressly  curtails  the  free  use  and  enjoyment  of 
the  land.  .  .  . 

GRAY,  PERPETUITIES,  §  282,  note.  In  the  time  of  Lord 
Coke  words  of  condition  restraining  the  use  of  land,  al- 
though manifestly  imposed  for  the  benefit  of  other  land  in 
the  neighborhood,  would  undoubtedly  have  been  deemed  to 
create  a  condition  enforceable  by  entry.  In  England,  how- 
ever, for  nearly,  if  not  quite,  two  centuries,  the  remedy  by 
entry  for  breach  of  condition  attached  to  a  conveyance  in 
fee  simple  has  been  practically  obsolete.  In  mortgages  all 
remedies  have  been  had  in  equity,  and  if  in  devises  clauses 
in  the  form  of  a  condition  have  been  inserted  to  secure  the 
payment  of  legacies  to  the  heir  or  third  persons,  the  right  to 
such  legacies  has  not  been  enforced  by  entry.  .  .  .  The 
practice  of  entry  undoubtedly  fell  into  disuse,  because  when 
the  condition  was  for  the  payment  of  money,  which  it  gen- 
erally was,  equity  would  restrain  a  forfeiture,  and  would 
in  many  cases  enforce  the  payment  as  a  trust.  Yet  it  was 
a  bold  statement  for  Sugden  to  make  in  his  treatise  on 
Powers  (ist  ed.),  96  (1808),  "That  what  by  the  old  law 
was  deemed  a  devise  upon  condition  would  now,  perhaps,  in 
almost  every  case,  be  construed  a  devise  in  fee  upon  trust, 


CONDITIONAL    ESTATES.  315 

and  by  this  construction,  instead  of  the  heir  taking  advan- 
tage of  the  condition  broken,  the  cestui  quc  trust  can  compel 
an  observance  of  the  trust  by  a  suit  in  equity."  But  this 
statement,  which  is  repeated  by  the  learned  author  in  all  the 
subsequent  editions — see  8th  ed.,  p.  106  (1861) — though 
bold,  was  prophetic.  In  1860  the  Court  of  Queen's  Bench 
and  on  appeal  the  Exchequer  Chamber,  held,  in  the  case  of 
Wright  v.  Wilkin,  2  B.  &  S.  232,  259,  that  upon  a  devise  on 
condition  that  the  devisee  should  pay  certain  legacies,  the 
heir  could  not  enter  for  breach  of  condition,  but  that  the 
devisee  took  the  land  on  trust ;  and  this  view  was  adopted 
by  the  House  of  Lords  in  A.  G.  v.  Wax  Chandlers'  Co.,  L. 
R.  6  H.  L.  i  (1873).  .  .  .  The  same  doctrine  has  been 
adopted  in  the  Supreme  Court  of  the  United  States,  after 
elaborate  argument,  in  Stanley  v.  Colt,  5  Wall.  119.  So  in 
Massachusetts.  Sohier  v.  Trinity  Church,  109  Mass,  i,  19; 
Episcopal  City  Mission  v.  Appleton,  117  Mass.  326;  Ayling 
v.  Kramer,  133  Mass.  12.  ...  To  the  same  effect  is 
Fuller  v.  Arms,  45  Vt.  400.  And  in  Connecticut  it  is  said 
that  all  conditions  which  are  not  for  the  benefit  of  some  in- 
dividual or  the  public  are  void.  Mitchell  v.  Leavitt,  30 
Conn.  587.  And  see  Barrie  v.  Smith,  47  Mich.  130.  But 
see  Blanchard  v.  Detroit,  &c.,  R.  R.  Co.,  31  Mich.  43;  Un- 
derhill  v.  Saratoga  R.  R.  Co.,  20  Barb.  455  ;  Aikin  v.  Albany, 
&c.,  R.  R.  Co.,  26  Barb.  289;  Douglas  v.  Hawes,  Ritchie, 
Eq.,  Dec.  146,  152. 


IV.    Future  Estates. 

CHAPTER  I. 
PRESENT  AND  FUTURE  ESTATES. 

2  BL.  COM.,  163.  Hitherto  we  have  considered  estates 
solely  with  regard  to  their  duration,  or  the  quantity  of  in- 
terest which  the  owners  have  therein.  We  are  now  to  con- 
sider them  in  another  view ;  with  regard  to  the  time  of  their 
enjoyment,  when  the  actual  pernancy  of  the  profits  (that  is, 
the  taking,  perception,  or  receipt,  of  the  rents  and  other 
advantages  arising  therefrom)  begins.  Estates  therefore 
with  respect  to  this  consideration,  may  either  be  in  posses- 
sion, or  in  expectancy;  and  of  expectancies  there  are  two 
sorts ;  one  created  by  the  act  of  the  parties,  called  a  re- 
mainder; the  other  by  act  of  law,  and  called  a  reversion. 

Of  estates  in  possession  (which  are  sometimes  called 
estates  executed,  whereby  a  present  interest  passes  to  and 
resides  in  the  tenant,  not  depending  on  any  subsequent  cir- 
cumstance or  contingency,  as  in  the  case  of  estate  execu- 
tory'), there  is  little  or  nothing  peculiar  to  be  observed.  All 
the  estates  we  have  hitherto  spoken  of  are  of  this  kind ;  for 
in  laying  down  general  rules,  we  usually  apply  them  to  such 
estates  as  are  then  actually  in  the  tenant's  possession.  But 
the  doctrine  of  estates  in  expectancy  contains  some  of  the 
nicest  and  most  abstruse  learning  in  the  English  law.  .  .  . 

LEAKE,  LAND  LAW,  45-49.  In  the  common  law  of  free- 
hold tenure  seisin  signifies  the  possession  of  the  fee  or  free- 
hold estate;  the  freeholder  was  described  in  law  as  seised, 
or  invested  with  the  seisin.  The  tenant  in  the  actual  pos- 
session or  seisin  was  presumptively  seised  of  an  estate  in  fee 


PRESENT   AND    FUTURE    ESTATES.  317 

simple.  If  entitled  only  for  a  particular  estate,  he  held  the 
seisin  not  only  in  his  own  right,  but  also  in  right  of  all  the 
estates  in  reversion  or  remainder  under  the  same  title;  the 
owners  of  which  participated  in  the  seisin  in  order  of  suc- 
cession, and  were  described  as  seised  in  reversion  or  in  re- 
mainder ;  for  the  actual  seisin  represented  the  fee,  or  all  the 
estates  into  which  it  might  be  subdivided. 

The  seisin,  as  representing  the  fee,  was  also  used  as  the 
means  of  conveyance.  Feoffment  or  the  conveyance  of  a 
freehold  estate  was  effected  by  livery  of  seisin,  that  is,  by 
an  actual  delivery  of  possession.  This  originally  con- 
stituted the  efficient  and  essential  act  of  conveyance,'  words 
being  required  only  to  explain  the  act,  and,  when  necessary, 
to  limit  and  direct  the  estates  for  which  it  was  intended  the 
seisin  should  be  held. 

A  feoffment  might  be  made  with  an  express  appropria- 
tion of  the  seisin  to  a  series  of  estates  in  the  form  of  par- 
ticular estate  and  remainders,  and  the  livery  to  the  immedi- 
ate tenant  was  then  effectual  to  transfer  the  seisin  to  or  on 
behalf  of  all  the  tenants  in  remainder,  according  to  the 
estates  limited.  But  future  estates  could  only  be  limited  in 
the  form  of  remainders,  and  any  limitations  operating  to 
shift  the  seisin  otherwise  than  as  remainders  expectant  upon 
the  determination  of  the  preceding  estate  were  void  at  com- 
mon law.  Thus,  upon  a  feoffment,  with  livery  of  seisin,  to 

A.  for  life  or  in  tail,  and  upon  the  determination  of  his 
estate  to  B.,  the  future  limitation  takes  effect  as  a  remainder 
immediately  expectant  upon  A.'s  estate.     But  upon  a  feoff- 
ment to  A.  in  fee  or  for  life,  and  after  one  year  to  B.  in  fee — 
or  to  A.  in  fee,  and  upon  his  marriage  to  B.  in  fee — or  to  A. 
in  fee  or  for  life,  and,  upon  B.  paying  A.  a  sum  of  money,  to 

B.  in  fee — the  limitations  shifting  the  seisin  from  A.  to  B. 
at  the  times  and  in  the  events  specified,  as  they  could  not 
take  effect  as  remainders,  were  wholly  void  at  common  law. 
Such  limitations  became  possible  in  dealing  with  uses  and  in 
dispositions  by  will,  as  will  appear  hereafter. 

The  exigencies  of  tenure  required  that  the  seisin  or  im- 


3l8   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

mediate  freehold  should  never  be  in  abeyance,  but  that  there 
should  at  all  times  be  a  tenant  invested  with  the  seisin  ready, 
on  the  one  hand,  to  meet  the  claims  of  the  lord  for  the  duties 
and  services  of  the  tenure,  and,  on  the  other  hand,  to  meet 
adverse  claims  to  the  seisin,  and  to  preserve  it  for  the  suc- 
cessors in  the  title. 

This  rule  had  important  effects  upon  the  creation  of  free- 
hold estates;  for  it  followed  as  an  immediate  consequence 
of  the  rule,  as  also  from  the  nature  of  the  essential  act  of 
conveyance  by  livery  of  seisin,  that  a  grant  of  the  freehold 
could  not  be  made  to  commence  at  a  future  time,  leaving  the 
tenancy  vacant  during  the  interval.  "Livery  of  seisin  must 
pass  a  present  freehold  to  some  person  and  cannot  give  a 
freehold  in  future."  "If  a  man  makes  a  lease  for  life  to  be- 
gin at  Michaelmas  it  is  void,  for  he  cannot  make  present  liv- 
ery to  a  future  estate,  and  therefore  in  such  case  nothing 
passes."1 

As  a  consequence  of  the  same  rule  if  a  feoffment  were 
made  to  A.  for  life  and  after  his  death  and  one  day  after  to 
B.  for  life  or  in  fee,  the  limitation  to  B.  was  void,  because  it 
would  leave  the  freehold  without  a  tenant  or  in  abeyance 
for  a  day  after  the  death  of  A. 

The  seisin  or  freehold  in  remainder  might  be  in  abey- 
ance during  the  continuance  of  the  particular  estate ;  for  the 
present  seisin  of  the  tenant  of  that  estate  was  sufficient 
to  satisfy  all  the  requirements  of  tenure,  and  it  repre- 
sented and  supported  all  the  future  estates  and  interests  in 
the  fee. 

Accordingly,  a  remainder  might  be  limited  to  take  effect 
upon  a  condition,  or  in  a  person  not  ascertained,  as  an  un- 
born child,  so  as  to  be  in  abeyance  or  uncertainty  until  the 
condition  happened  or  the  person  became  ascertained.  Such 
a  limitation  was  good  and  might  remain  in  uncertainty  so 
long  as  the  particular  estate  continued,  as  it  was  supported 
by  the  seisin  of  that  estate.  But  it  was  essential  that  it 
should  have  become  certain  and  absolute  at  the  time  when 

'Co.  Litt.  217,  a;  5  Co.  94,  b,  Warwick's  Case. 


PRESENT    AND    FUTURE    ESTATES.  319 

the  particular  estate  determined;  and  if  not  then  ascer- 
tained, so  as  to  be  capable  of  taking  up  the  seisin,  it  failed 
altogether,  and  the  next  estate  in  remainder  took  immediate 
effect. 

The  term  seisin  did  not  apply  to  the  possession  of  a  tenant 
for  years  or  leaseholder  in  his  own  right ;  he  had  no  par- 
ticipation in  the  freehold,  and  was  described  in  law  simply 
as  possessed.  But  his  possession,  being  referred  to  the  title 
of  the  freeholder  under  whom  he  held,  constituted  the 
seisin.  The  freeholder  was  still  described  as  seised,  though 
his  seisin  was  subject  to  the  lease  for  years. 

ID.,  313.  It  was  a  principle  of  the  common  law  that  the 
seisin  or  freehold  could  never  be  put  in  abeyance ;  that  there 
must  always  be  a  present  tenant  to  answer  to  the  require- 
ments of  tenure.  Whence  the  rule  that  an  estate  of  freehold 
cannot  be  limited  to  commence  at  a  future  time. 

But  the  freehold  may  be  distributed  into  a  particular 
estate  and  reversion  or  remainders ;  and  the  reversion  or  re- 
mainders, though  vested  in  interest,  are  deferred  or  future 
estates  in  regard  to  the  possession.  Moreover,  a  remainder 
may  be  limited  upon  a  contingency  so  as  to  defer  also  the 
vesting  until  the  determination  of  the  particular  estate,  con- 
sistently with  the  rule  that  the  freehold  shall  not  be  in  abey- 
ance, as  the  tenancy  is  full  during  the  continuance  of  the 
particular  estate. 

DIGBY,  HIST.  REAL  PROP.,  Ch.  V.,  §  3.  An  estate  in 
expectancy,  or,  more  accurately,  a  right  of  future  enjoyment 
of  lands,  is  distinguished  from  an  estate  in  possession,  or  an 
estate  of  present  enjoyment.  The  actual  enjoyment  or  pos- 
session of  lands  is  in  the  former  case  postponed  until  the 
lapse  of  a  specified  time,  or  the  happening  of  some  specified 
event.  On  the  other  hand,  these  estates  differ  from  mere 
chances  or  possibilities  of  rights,  inasmuch  as  they  are  dis- 
tinct and  definite  interests  known  to  the  law,  capable  of 
alienation  by  the  appropriate  methods,  and  devolving  at  the 
death  of  the  person  entitled  upon  his  representatives.  Thus 


32O   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

in  the  case  of  a  gift  of  lands  to  A.  for  life,  and  after  his  de- 
cease to  B.  and  his  heirs,  B.  has  an  estate  in  fee  simple  in  the 
lands,  postponed  in  point  of  possession  or  enjoyment  till 
after  the  death  of  A.,  but  yet  a  present  interest  which  he  can 
dispose  of  in  the  proper  method,  and  which  will  descend  to 
his  heir.  On  the  other  hand,  the  expectation  of  C.,  eldest 
son  of  D.,  tenant  in  fee  simple,  of.  succeeding  to  his  father's 
lands,  is  not  an  interest  recognized  by  the  law,  it  is  merely 
the  hope  or  "chance  of  having  certain  rights  at  some  future 
time.  If  tT."  dies  before  his  father,  his  eldest  son  suc- 
ceeds, not  as  representing  him,  but  as  heir  to  D.,  the  grand- 
father. 

N.  Y.  REAL  PROP.  LAW,  §  25.  Estates,  as  respects  the 
time  of  their  enjoyment,  are  divided  into  estates  in  posses- 
sion and  estates  in  expectancy.  An  estate  which  entitles 
the  owner  to  immediate  possession  of  the  property  is  an 
estate  in  possession.  An  estate  in  which  the  right  of 
possession  is  postponed  to  a  future  time  is  an  estate  in 
expectancy. 

§  26.  All  expectant  estates,  except  such  as  are  enu- 
merated and  defined  in  this  article,  have  been  abolished. 
Estates  in  expectancy  are  divided  into 

1.  Future  estates ;  and 

2.  Reversions. 

§  27.  A  future  estate  is  an  estate  limited  to  commence 
in  possession  at  a  future  day,  either  without  the  interven- 
tion' of  a  precedent  estate,  or  on  the  determination,  by  lapse 
of  time  or  otherwise,  of  a  precedent  estate  created  at  the 
same  time. 


CHAPTER  II. 

REVERSIONS. 

2  POLL.  &  MAIT.,  HIST.  ENG.  LAW,  21.  Two  technical 
terms  are  becoming  prominent,  namely,  "revert"  and  "re- 
main." For  a  long  time  past  the  word  reverti,  alternating 
with  redire,  has  been  in  use  both  in  England  and  on  the 
mainland  to  describe  what  will  happen  when  a  lease  of  land 
expires : — the  land  will  "come  back"  to  the  lessor.  We  find 
this  phrase  in  those  "three  life  leases"  which  Bishop  Oswald 
of  Worcester  granted  in  King  Edgar's  day.  We  find  it  also 
in  a  constitution  issued  by  Justinian,  which  is  the  probable 
origin  of  those  "three  life  leases"  that  were  granted  by  the 
Anglo-Saxon  churches.  But  occasionally  in  yet  remote 
times  men  would  endeavor  to  provide  that  when  one  per- 
son's enjoyment  of  the  land  had  come  to  an  end,  the  land 
should  not  "come  back"  to  the  donor  or  lessor,  but  should 
"remain,"  that  is,  stay  out  for,  some  third  person.  The  verb 
remanere  was  a  natural  contrast  to  the  verb  reverti  or 
redire;  the  land  is  to  stay  out  instead  of  coming  back.  Both 
terms  were  in  common  use  in  the  England  of  the  thirteenth 
century,  and  though  we  may  occasionally  see  the  one  where 
we  should  expect  the  other,  they  are  in  general  used  with 
precision.  Land  can  only  "revert"  to  the  donor  or  to  those 
who  represent  him  as  his  heirs  or  assigns :  if  after  the  ex- 
piration of  one  estate  the  land  is  not  to  come  back  to  the 
donor,  but  is  to  stay  out  for  the  benefit  of  another,  then  it 
"remains"  to  that  other.  Gradually  the  terms  "reversion" 
and  "remainder,"  which  appear  already  in  Edward  I.'s  day, 
are  coined  and  become  technical ;  at  a  yet  later  date  we  have 
"  reversioner  "  and  "  remainderman."  When  creating  a  life 
estate,  it  was  usual  for  the  donor  to  say  expressly  that  on  the 


322   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

tenant's  death  the  land  was  to  revert.  But  there  was  no  need 
to  say  this:  if  nothing  was  said  the  land  went  back  to  the 
donor  who  had  all  along  been  its  lord. 

LIT.,  §  19.  ...  In  every  gift  in  taile  without  more 
saying,  the  reversion  of  the  fee  simple  is  in  the  donor.  .  .  . 

Co.  LIT.,  22,  b.  -A  reversion  is  where  the  residue  of  the 
estate  always  doth  continue  in  him  that  made  the  particular 
estate,  or  where  the  particular  estate  is  derived  out  of  his 
estate,  as  here  in  the  case  of  Lift.  Tenant  in  fee  simple 
maketh  gift  in  taile,  so  it  is  of  a  lease  of  life,  or  for  yeares. 

DIGBY,  HIST.  REAL  PROP.,  Ch.  V.,  §  3  (i).  Reversions. 
— Where  a  freeholder  grants  away  some  estate  smaller  than 
that  which  he  has  himself,  he  has,  in  the  metaphorical 
language  of  the  law,  an  interest  left  in  him,  which,  though 
not  immediately  an  interest  of  present  possession  or  enjoy- 
ment, will  become  such  so  soon  as  the  smaller  preceding 
interest  has  expired.  Thus,  where  a  tenant  in  fee  simple 
has  created  an  estate  in  tail,  for  life,  or  for  years,  he  has  left 
in  him  a  present  estate,  which  will  come  into  possession  or 
enjoyment  on  the  expiration  or  sooner  determination  of  the 
estate  tail,  the  estate  for  life,  or  the  estate  for  years.  •  The 
smaller  estate  thus  granted  is  called  the  "particular"  estate. 
"A  reversion,"  says  Sir  E.  Coke,  "is  where  the  residue  of 
the  estate  always  doth  continue  in  him  that  made  the  par- 
ticular estate."  It  has  already  been  observed,  that  between 
the  reversioner  and  the  tenant  of  the  particular  estate  a 
tenure  exists — the  latter  holds  of  the  former.  Hence,  before 
the  Statute  4  Anne,  c.  16,  the  attornment  of  the  tenant  was 
necessary  to  complete  the  grant  of  the  reversion ;  otherwise, 
the  tenant  would  have  had  a  new  lord  imposed  upon  him 
without  his  consent. 

The  proper  mode  of  conveying  or  disposing  of  the  rever- 
sion is  by  grant,  that  is,  grant  by  deed,  or  writing  on  paper 


REVERSIONS.  323; 

or  parchment  sealed  and  delivered.  Suppose  A.  has  the 
reversion  in  fee  simple  expectant  on  an  estate  tail,  or  on  an 
estate  for  life,  or  on  an  estate  for  years.  He  can  by  a  simple 
deed  of  grant  create  any  number  of  estates  tail,  or  estates 
for  life,  or  estates  for  years  out  of  his  reversionary  interest, 
and  dispose  of  them  as  he  pleases.  He  can  deal  with  the 
reversionary  interest  just  as  he  can  deal  with  an  interest  in 
possession,  only  he  cannot  give  livery  of  seisin,  for  the  sim- 
ple reason  that  he  has  it  not  to  give,  inasmuch  as  he  is  not 
in  actual  possession  of  the  lands.  This,  however,  is  subject 
to  the  exception  that  the  reversioner  is  in  one  sense  seised 
when  the  particular  estate  is  only  a  lease  for  years.  The 
lessee  for  years  is,  as  has  been  said  above,  not  seised  of  the 
lands,  but  only  possessed  of  the  term.  Seisin,  as  has  been 
seen,  implies  (i)  actual  possession,  (2)  possession  as  of 
freehold.  Where,  therefore,  there  is  a  particular  estate  of 
leasehold  tenure,  the  reversioner,  if  he  can  obtain  the  con- 
sent of  the  lessee  to  come  on  the  land  for  the  purpose,  can 
pass  his  interest  by  feoffment,  accompanied  by  livery  of 
seisin.  In  this  case,  however,  he  grants,  not  the  reversion, 
but  the  freehold  in  possession. 

When  a  reversioner  desires,  not  to  grant  his  reversion  to 
a  third  person,  but  to  convey  it  to  the  person  who  already 
has  the  particular  estate,  he  is  said  to  release  the  reversion. 
This  he  may  do  by  deed.  Supposing,  therefore,  in  the  case 
above  put,  A.,  tenant  of  the  reversion  in  fee,  should  execute 
a  deed  releasing  his  interest  to  tenant  in  tail,  tenant  for  life, 
or  tenant  for  years,  the  reversion  in  fee  would  coalesce  with 
the  particular  estate  in  tail,  for  life,  or  for  years.  This 
coalescing  of  a  smaller  estate  with  a  larger  is  called  merger, 
the  rule  being  that  where  the  same  person  becomes  entitled 
to  two  estates,  the  one  of  which  is  to  take  effect  in  posses- 
sion during  the  continuance  or  immediately  on  the  deter- 
mination of  the  other,  the  smaller  one  is  merged  or  swal- 
lowed up  in  the  larger.  So  in  the  above  cases,  each  of  the 
tenants  in  possession,  tenant  in  tail,  tenant  for  life,  and  ten- 
ant for  years,  becomes  at  once  tenant  in  fee  simple  in  pos- 


324   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

session.  The  same  effect  is  produced  by  the  surrender  of 
the  particular  estate  to  the  reversioner.  The  particular 
estate  merges  in  the  larger  reversionary  estate. 

Thus,  as  the  law  became  more  refined,  new  modes  of  con- 
veying lands  from  one  person  to  another  were  introduced, 
destined, '  with  some  modifications  to  be  hereafter  noticed, 
to  supersede  in  practice  the  old  feoffment,  fine,  and  re- 
covery. If  A.,  tenant  in  fee  simple,  wished  to  convey  the 
lands  to  B.,  he  might  make  a  lease  to  him  of  the  lands  in 
question,  upon  which  B.  would  enter,  and  was  then  at  once 
capable  of  taking  a  release  by  deed  of  the  reversion  in  fee. 
This  was  called  conveyance  by  lease  and  release,  and  became 
in  later  times  the  usual  mode  of  conveying  lands.1  .  .  . 

A  conveyance  of  the  reversion  might  also  be  made  to  a 
stranger.  In  this  case  it  was  formerly  necessary  that  the 
tenant  of  the  particular  estate,  whether  in  tail,  for  life,  or 
for  years,  should  attorn  to  the  grantee  of  the  reversion,  in 
other  words,  acknowledge  him  as  the  person  of  whom  the 
lands  were  held.  The  necessity  for  attornment  was  done 
away  with  by  4  Anne,  c.  16,  sees.  9,  10.  Thus  two  new 
modes  of  conveying  the  immediate  freehold  were  added, 
lease  and  release,  and  grant  and  attornment. 

LEAKE,  LAND  LAW,  315.  In  like  manner,  if  the  tenant  of 
a  particular  estate  convey  the  land  for  a  less  estate,  he  has  a 
reversion  left  in  himself;  thus  tenant  in  tail,  by  a  disentail- 
ing assurance,  may  dispose  of  the  lands  entailed  in  fee  sim- 
ple or  for  any  less  estate ;  and  if  he  make  a  disposition  for  a 
less  estate,  the  reversion  remains  in  him  and  is  subject  to  the 
entail,  unless  it  be  wholly  barred  by  the  same  assurance.  If 
tenant  in  tafl  lease  for  life  or  for  years  at  common  law,  with- 
out a  disentailing  assurance  or  any  other  special  or  statutory 
power  in  that  behalf,  he  has  a  reversion ;  but  such  lease  is 
valid  only  during  his  life,  and  is  voidable  at  his  death  by  the 
heir  in  tail.  So,  tenant  for  life  may  make  a  lease  for  years, 
and,  however  long  the  term  of  years  may  be,  as  it  is  not 
1  See  pages  437,  502,  post. — ED. 


REVERSIONS.  325 

coextensive  with  the  freehold,  there  is  a  reversion  in  the 
lessor.  But  such  lease  made  under  a  special  or  statutory 
power  is  valid  only  during  the  continuance  of  the  lessor's 
estate,  and  is  avoided  by  his  death. 

If  tenant  for  term  of  years  make  an  underlease  for  a 
shorter  term,  by  however  small  an  interval  of  time,  he  has 
the  reversion  for  that  interval  left  in  him.  An  underlease 
for  a  shorter  term,  "if  the  underlessee  shall  so  long  live," 
"leaves  a,t  reversion  expectant  on  the  determination  of  the 
sub-term  either  by  lapse  of  time  or  by  the  death  of  the  un- 
derlessee. An  underlease  for  the  whole  term,  or  for  a 
greater  term,  operates  as  an  assignment  and  leaves  no  re- 
version ;  it  carries  with  it  all  the  rights  and  liabilities  inci- 
dent to  the  term  and  leaves  none  of  the  incidents  of  a  rever- 
sion..1 If  tenant  for  term  of  years  convey  the  land  to  another 
for  an  estate  for  life  or  in  tail  at  common  law,  the  whole 
term  passes  and  there  is  no  reversion. 

The  grant  of  a  particular  estate,  leaving  a  reversion  in  the 
grantor,  creates  a  tenure  between  the  tenant  of  the  par- 
ticular estate  and  the  reversioner.  This  tenure  is  not  within 
the  statute  of  Quia  emptores,  for  that  statute  extends  only 
to  alienations  in  fee  simple,  preventing  any  new  tenure  aris- 
ing upon  such  alienations.  Hence  rent  reserved  upon  such 
a  grant  of  a  particular  estate  is  of  the  nature  of  rent  ser- 
vice, and  is  attended  at  common  law  with  the  remedy  of  dis- 
tress. And  a  grant  of  the  reversion  impliedly  carries  with  it 
all  the  incidents  of  the  tenure,  as  the  rent  service,  if  any, 
unless  there  be  an  express  exception  of  such  incidents  in  the 
grant. 

N.  Y.  REAL  PROP.  LAW,  §  29.  A  reversion  is  the  residue 
of  an  estate  left  in  the  grantor  or  his  heirs,  or  in  the  heirs  of 
a  testator,  commencing  in  possession  on  the  determination 
of  a  particular  estate  granted  or  devised. 


CHAPTER  III. 
REMAINDERS. 

(a)  Vested  Remainders. 

Co.  LIT.,  143,  a.  "Remainder,"  in  legall  Latine,  is  re- 
•manere,  coming  of  the  Latine  worde  remaneo;  for  that  it  is 
a  remainder  or  remnant  of  an  estate  in  lands  or  tenements, 
expectant  upon  a  particular  estate  created  together  with  the 
same  at  one  time. 

2  BL.  COM.,  163-168.  An  estate,  then,  in  remainder  may 
"be  defined  to  be  an  estate  limited  to  take  effect  and  be  en- 
joyed after  another  estate  is  determined.  As  if  a  man  seised 
in  fee-simple  granteth  lands  to  A.  for  twenty  years,  and, 
after  the  determination  of  the  said  term,  then  to  B.  and  his 
heirs  forever:  here  A.  is  tenant  for  years,  remainder  to  B. 
in  fee.  In  the  first  place  an  estate  for  years  is  created  or 
carved  out  of  the  fee,  and  given  to  A.;  and  the  residue  or 
remainder  of  it  is  given  to  B.  But  both  these  interests  are 
in  fact  only  one  estate ;  the  present  term  of  years  and  the 
remainder  afterward,  when  added  together,  being  equal 
-only  to  one  estate  in  fee.  They  are  indeed  different  parts, 
but  they  constitute  only  one  ivh.ole:  they  are  carved  out  of 
•one  and  the  same  inheritance :  they  are  both  created,  and 
may  both  subsist,  together;  the  one  in  possession,  the  other 
in  expectancy.  So  if  land  be  granted  to  ^_Jor^tweriiy_vears, 
rand  after  the  determination  of  the  said  term  to  B.  for  life ; 
and  after  the  determination  of  B.'s  estate  for  .life,  it  be  lim- 
ited to  C.  and  his  heirs  forever ;  this  makes  A.  tenant  for 
years,  with  remainder  to  B.  for  life,  remainder  over  to  C. 
in  fee.  Now,  here  the  estate  of  inheritance  undergoes  a 


REMAINDERS.  327 

division  into  three  portions :  there  is  first  A.'s  estate  for 
years  carved  out  of  it ;  and  after  that  B.'s  estate  for  life ;  and 
then  the  whole  that  remains  is  limited  to  C.  and  his  heirs. 
And  here  also  the  first  estate,  and  both  the  remainders,  for 
life  and  in  fee,  are  one  estate  only ;  being  nothing  but  parts 
or  portions  of  one  entire  inheritance :  and  if  there  were  a 
hundred  remainders,  it  would  still  be  the  same  thing:  upon 
a  principle  grounded  in  mathematical  truth,  that  all  the 
parts  are  equal,  and  no  more  than  equal,  to  the  whole.  And 
hence  also  it  is  easy  to  collect,  that  no  remainder  can  be  lim- 
ited after  the  grant  of  an  estate  in  fee-simple :  because  a  fee- 
simple  is  the  highest  and  largest  estate  that  a  subject  is 
capable  of  enjoying ;  and  he  that  is  tenant  in  fee  hath  in  him 
the  whole  of  the  estate:  a  remainder,  therefore,  which  is 
only  a  portion,  or  residuary  part,  of  the  estate,  cannot  be  re- 
served after  the  whole  is  disposed  of.  A  particular  estate, 
with  all  the  remainders  expectant  thereon,  is  only  one  fee- 
simple  :  as  £40  is  part  of  £100  and  £60  is  the  remainder  of 
it :  wherefore,  after  a  fee-simple  once  vested,  there  can  no 
more  be  a  remainder  limited  thereon,  than,  after  the  whole 
£100  is  appropriated,  there  can  be  any  residue  subsisting. 

Thus  much  being  premised,  we  shall  be  the  better  enabled 
to  comprehend  the  rules  that  are  laid  down  by  law  to  be 
observed  in  the  creation  of  remainders,  and  the  reasons 
upon  which  those  rules  are  founded. 

i.  And,  first,  there  must  necessarily  be  some  particular  es- 
tate precedent  to  the  estate  in  remainder.  As,  an  estate  for 
years  to  A.,  remainder  to  B.  for  life ;  or,  an  estate  for  life  to 
A.,  remainder  to  B.  in  tail.  This  precedent  estate  is  called 
the  particular  estate,  as  being  only  a  small  part,  or  particula, 
of  the  inheritance ;  the  residue  or  remainder  of  which  is 
granted  over  to  another.  The  necessity  of  creating  this 
preceding  particular  estate,  in  order  to  make  a  good  re- 
mainder, arises  from  this  plain  reason ;  that  remainder  is  a 
relative  expression,  and  implies  that  some  part  of  the  thing 
is  previously  disposed  of:  for  where  the  whole  is  conveyed 
at  once,  there  cannot  possibly  exist  a  remainder ;  but  the  in- 


328   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

terest  granted,  whatever  it  be,  will  be  an  estate  in  posses- 
sion. 

An  estate  created  to  commence  at  a  distant  period  of  time, 
without  any  intervening  estate,  is  therefore  properly  no  re- 
mainder ;  it  is  the  whole  of  the  gift,  and  not  a  residuary  part. 
And  such  future  estates  can  only  be  made  of  chattel  inter- 
ests, which  were  considered  in  the  light  of  mere  contracts 
by  the  ancient  law,  to  be  executed  either  now  or  hereafter, 
as  the  contracting  parties  should  agree ;  but  an  estate  of 
freehold  must  be  created  to  commence  immediately.  For 
it  is  an  ancient  rule  of  the  common  law,  that  an  estate  of 
freehold  cannot  be  created  to  commence  in  futuro;  but  it 
ought  to  take  effect  presently  either  in  possession  or  re- 
mainder ;  because  at  common  law  no  freehold  in  lands  could 
pass  without  livery  of  seisin ;  which  must  operate  either  im- 
mediately, or  not  at  all.  It  would,  therefore,  be  contradic- 
tory, if  an  estate,  which  is  not  to  commence  till  hereafter, 
could  be  granted  by  a  conveyance  which  imports  an  immedi- 
ate possession.  Therefore,  though  a  lease  to  A.  for  seven 
years,  to  commence  from  next  Michaelmas,  is  good ;  yet  a 
conveyance  to  B.  of  lands,  to  hold  to  him  and  his  heirs  for- 
ever from  the  end  of  three  years  next  ensuing,  is  void.  So 
that  when  it  is  intended  'to  grant  an  estate  of  freehold, 
whereof  the  enjoyment  shall  be  deferred  till  a  future  time, 
it  is  necessary  to  create  a  previous  particular  estate,  which 
may  subsist  till  that  period  of  time  is  completed;  and  for 
the  grantor  to  deliver  immediate  possession  of  the  land  to 
the  tenant  of  this  particular  estate,  which  is  construed  to  be 
giving  possession  to  him  in  remainder,  since  his  estate  and 
that  of  the  particular  tenant  are  one  and  the  same  estate  in 
law.  As,  where  one  leases  to  A.  for  three  years,  with  re- 
mainder to  B.  in  fee,  and  makes  livery  of  seisin  to  A.;  here 
by  the  livery  the  freehold  is  immediately  created,  and. vested 
in  B.  during  the  continuance  of  A.'s  term  of  years.  The 
whole  estate  passes  at  once  from  the  grantor  to  the 
grantees,  and  the  remainder-man  is  seised  of  his  remainder 
at  the  same  time  that  the  termor  is  possessed  of  his  term. 


REMAINDERS.  329 

The  enjoyment  of  it  must  indeed  be  deferred  till  hereafter ; 
but  it  is  to  all  intents  and  purposes  an  estate  commencing  in 
praescnti,  though  to  be  occupied  and  enjoyed  in  futuro. 

As  no  remainder  can  be  created  without  such  a  precedent 
particular  estate,  therefore  the  particular  estate  is  said  to 
support  the  remainder.  But  a  lease  at  will  is  not  held  to  be 
such  a  particular  estate  as  will  support  a  remainder  over. 
For  an  estate  at  will  is  of  a  nature  so  slender  and  preca- 
rious, that  it  is  not  looked  upon  as  a  portion  of  the  inher- 
itance ;  and  a  portion  must  first  be  taken  out  of  it,  in  order 
to  constitute  a  remainder.  Besides,  if  it  be  a  freehold  re- 
mainder, livery  of  seisin  must  be  given  at  the  time  of  its 
creation ;  and  the  entry  of  the  grantor  to  do  this  determines 
the  estate  at  will  in  the  very  instant  in  which  it  is  made :  or 
if  the  remainder  be  a  chattel  interest,  though  perhaps  the 
deed  of  creation  might  operate  as  a  future  contract,  if  the 
tenant  for  years  be  a  party  to  it,  yet  it  is  void  by  way  of 
remainder:  for  it  is  a  separate  independent  contract,  distinct 
from  the  precedent  estate  at  will ;  and  every  remainder  must 
be  part  of  one  and  the  same  estate,  out  of  which  the  preced- 
ing particular  estate  is  taken.  And  hence  it  is  generally 
true,  that  if  the  particular  estate  is  void  in  its  creation,  or  by 
any  means  is  defeated  afterwards  the  remainder  supported 
thereby  shall  be  defeated  also :  as  where  the  particular  estate 
is  an  estate  for  the  life  of  the  person  not  in  ,esse;  or  an 
estate  for  life  upon  condition,  on  breach  of  which  condition 
the  grantor  enters  and  avoids  the  estate;  in  either  of  these 
cases  the  remainder  over  is  void. 

2.  A  second  rule  to  be  observed  is  this ;  that  the  re- 
mainder must  commence  or  pass  out  of  the  grantor  at  the 
time  of  the  creation  of  the  particular  estate.  As,  where 
there  is  an  estate  to  A.  for  life,  with  remainder  to  B.  in  fee : 
here  B.'s  remainder  in  fee  passes  from  the  grantor  at  the 
same  time  that  seisin  is  delivered  to  A.  of  his  life  estate  in 
possession.  And  it  is  this  which  induces  the  necessity  at 
common  law  of  livery  of  seisin  being  made  on  the  particular 
estate,  whenever  a  freehold  remainder  is  created.  For,  if  it 


33°   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

be  limited  even  on  an  estate  for  years,  it  is  necessary  that 
the  lessee  for  years  should  have  livery  of  seisin,  in  order  to 
convey  the  freehold  from  and  out  of  the  grantor,  otherwise 
the  remainder  is  void.  Not  that  the  livery  is  necessary  to 
strengthen  the  estate  for  years ;  but,  as  livery  of  the  land  is 
requisite  to  convey  the  freehold,  and  yet  cannot  be  given 
to  him  in  remainder  without  infringing  the  possession  of 
the  lessee  for  years,  therefore  the  law  allows  such  livery, 
made  to  the  tenant  of  the  particular  estate,  to  relate  and 
enure  to  him  in  remainder,  as  both  are  but  one  estate  in 
law. 

3.  A  third  rule  respecting  remainders  is  this :  that  the  re- 
mainder must  vest  in  the  grantee  during  the  continuance  of 
the  particular  estate,  or  eo  instanti  that  it  determines.  As, 
if  A.  be  tenant  for  life,  remainder  to  B.  in  tail ;  here  B.'s 
remainder  is  vested  in  him,  at  the  creation  of  the  particular 
estate  to  A.  for  life;  or  if  A.  and  B.  be  tenants  for  their  joint 
lives,  remainder  to  the  survivor  in  fee ;  here,  though  during 
their  joint  lives,  the  remainder  is  vested  in  neither,  yet  on 
the  death  of  either  of  them,  the  remainder  vests  instantly  in 
the  survivor:  wherefore  both  these  are  good  remainders. 
But,  if  an  estate  be  limited  to  A.  for  life< remainder  to  the 
eldest  son  of  B.  in  tail,  and  A.  dies  before  B.  hath  any  son ; 
here  the  remainder  will  be  void,  for  it  did  not  vest  in  any 
one  during  the  continuance,  nor  at  the  determination,  of  the 
particular  estate :  and  even  supposing  that  B.  should  after- 
wards have  a  son,  he  shall  not  take  by  this  remainder;  for, 
as  it  did  not  vest  at  or  before  the  end  of  the  particular 
estate,  it  never  can  vest  at  all,  but  is  gone  forever.  And  this 
depends  upon  the  principle  before  laid  down,  that  the  prece- 
dent particular  estate  and  the  remainder  are  one  estate  in 
law ;  they  must  therefore  subsist  and  be  in  esse  at  one  and 
the  same  instant  of  time,  either  during  the  continuance  of 
the  first  estate,  or  at  the  very  instant  when  that  determines, 
so  that  no  other  estate  can  possibly  come  between  them. 
For  there  can  be  no  intervening  estate  between  the  par- 
ticular estate,  and  the  remainder  supported  thereby:  the 


.  REMAINDERS.  33! 

thing  supported  must  fall  to  the  ground,  if  once  its  support 
be  severed  from  it. 

It  is  upon  these  rules,  but  principally  the  last,  that  the 
doctrine  of  contingent  remainders  depends.  For  remain- 
ders are  either  vested  or  contingent.  Vested  remainders 
(or  remainders  executed,  whereby  a  present  interest  passes 
to  the  party,  though  to  be  enjoyed  in  futuro}  are  where 
the  estate  is  invariably  fixed,  to  remain  to  a  determinate 
person,  after  the  particular  estate  is  spent.  As  if  A.  be 
tenant  for  twenty  years,  remainder  to  B.  in  fee;  here  B.'s 
is  a  vested  remainder,  which  nothing  can  defeat,  or  set 
aside. 

LEAKE,  LAND  LAW,  318.  If  a  grant  be  made  to  A.  for 
life,  and  after  the  lapse  of  a  day  after  his  death  to  B.  for  life 
or  in  fee,  the  limitation  to  B.  is  not  a  remainder,  because  it 
does  not  commence  in  possession  immediately  on  the  deter- 
mination of  the  particular  estate ;  it  is  a  limitation  of  a  free- 
hold estate  to  commence  in  futuro,  which  in  a  common  law 
conveyance  is  void,  and  the  reversion  of  A.'s  estate  remains 
in  the  grantor. 

Also  a  limitation  which  is  to  take  effect  in  defeasance  of 
a  preceding  estate,  without  waiting  for  the  regular  deter- 
mination of  that  estate  according  to  the  terms  of  its  limita- 
tion, is  not  a  remainder;  and  such  a  limitation  is  void  at 
common  law.  But  the  preceding  particular  estate  may  be 
made  determinable  by  a  conditional  limitation,  and  the  estate 
limited  to  take  effect  in  possession  immediately  upon  its 
determination,  whether  that  happen  under  the  conditional 
limitation  or  by  the  expiration  of  the  full  term  of  limita- 
tion, is  a  remainder. 

The  particular  estate  and  the  remainder  must  be  created 
at  the  same  time  by  one  conveyance  or  instrument ;  for  if 
the  particular  estate  be  first  created,  leaving  the  reversion 
in  the  grantor,  any  subsequent  disposition  can  be  effected 
only  by  grant  or  assignment  of  the  reversion ;  which  is  not 
thereby  changed  into  a  remainder,  but  still  retains  its  char- 


332   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

acter  of  a  reversion,  to  which  the  tenure  of  the  particular 
estate  is  incident. 

ID.,  320.  Tenant  of  a  particular  estate  of  freehold  may, 
in  general,  convey  the  land  for  a  less  estate  with  remainder 
over.  A  term  of  years,  being  personal  estate,  does  not  admit 
of  limitation,  at  common  law,  into  a  particular  estate  and  re- 
mainder. If  tenant  for  term  of  years  assign  the  term  to  a 
person  for  life,  it  operates  as  an  absolute  assignment  of  the 
whole  term,  however  long  the  term  may  be.  Tenant  for 
term  of  years  may  make  an  underlease  for  a  less  number  of 
years,  thereby  creating  a  new  term  in  the  underlessee  with 
the  reversion  of  the  original  term  in  himself;  and  he  may 
make  a  further  underlease  to  another  person  commencing  at 
the  expiration  of  the  prior  one.  Where  a  lease  was  made 
to  A.  for  ninety-nine  years,  if  he  should  so  long  live,  and  if 
he  should  die  within  the  term,  the  remainder  thereof  to  B. 
for  the  residue  of  the  term,  it  was  construed  as  a  lease  to  B. 
for  so  many  of  ninety-nine  years  as  should  be  unexpired  at 
the  death  of  A. ;  the  word  term  being  construed,  for  the  pur- 
pose of  supporting  the  limitation,  to  mean  the  time  or  num- 
ber of  years  mentioned.  .  .  . 

Upon  the  grant  of  a  particular  estate  with  remainder  or 
remainders,  leaving  a  reversion  in  the  grantor,  the  relation 
of  tenure  is  created  between  the  successive  tenants  of  the 
particular  estate  and  remainders  and  the  reversioner.  But 
if  the  ultimate  remainder  is  granted  in  fee  leaving  no  rever- 
sion, no  new  tenure,  is  created,  and  the  tenants  in  succession 
hold  of  the  chief  lord  by  the  statute  of  Quia  Emptores. 
There  is  no  tenure  between  the  tenant  of  the  particular 
estate  and  the  remainderman ;  for  the  one  does  not  derive 
title  from  the  other,  but  both  from  the  same  source. 

DIGBY,  HIST.  REAL  PROP.,  Ch.  V.,  §  3  (2).  It  follows, 
from  the  very  definition  of  a  remainder  above  given,  that  so 
soon  as  the  fee  simple  is  parted  with,  the  donor  has  given 
away  all  that  he  has  to  grant,  and  can  make  no  ulterior  dis- 
position. A  remainder  limited  to  take  effect  after  a  fee  sim- 


REMAINDERS.  333 

pie  estate  is  simply  void.  Nor  is  the  case  altered  when,  as 
has  been  pointed  out  above,  the  estate  in  fee  simple  rs  liable 
to  be  terminated  by  the  happening  of  some  specified  event. 
For  instance,  if  an  estate  be  granted  to  A.  and  his  heirs  so 
long  as  he  continues  unmarried,  this  estate  will  come  to  an 
end  upon  A.'s  marriage ;  but  the  rule  that  a  remainder  can- 
not be  limited  after  a  fee  simple  would,  at  common  law,  pre- 
vent the  settlor  from  making  any  ulterior  gift,  such  as  "and 
from  and  after  the  marriage  of  A.  to  B.  and  his  heirs." 
*****  *  * 

The  conception  of  a  '"remainder"  is  probably  peculiar  to 
English  law,  and  is  closely  connected  with  the  notions  of 
estate  and  tenure.  The  tenant  of  lands  has  not  the  full 
property,  but  only  an  estate  or  interest  of  greater  or  less  ex- 
tent or  duration.  An  estate  in  fee  simple  is  considered  as  an 
aggregate  out  of  which  any  number  of  smaller  estates  may 
be  derived  or  carved ;  so  long  as  the  fee  simple  itself  is  not 
parted  with,  it  is  retained  as  a  present  interest  or  right, 
though  the  enjoyment  or  possession  of  it  is  postponed.  So 
the  interests  which  are  parted  with  are  regarded  as  present 
rights  postponed  in  point  of  enjoyment.  Roman  law  did 
not  admit  of  the  simultaneous  existence  in  different  persons 
of  separate  rights  of  future  and  present  enjoyment  over  the 
same  subject-matter,  except  perhaps  in  the  case  of  domin- 
ium,  and  the  so-called  jura  in  re  aliena  (ususfructus  em- 
phyteusis,  etc.}.  Where  these  rights  existed,  the  interest  of 
the  dominus  was  closely  analogous  to  an  English  reversion. 

N.  Y.  REAL  PROP.  LAW,  §  28.  Where  a  future  estate 
is  dependent  on  a  precedent  estate,  it  may  be  termed  a  re- 
mainder, and  may  be  created  and  transferred  by  that  name. 

(b)  Contingent  Remainders. 

2  BL.  COM.,  168-172.  Contingent  or  executory  remain- 
ders (whereby  no  present  interest  passes)  are  where  the 
estate  in  remainder  is  limited  to  take  effect,  either  to  a 


334   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

dubious  and  uncertain  person,  or  upon  a  dubious  and 
uncertain  event;  so  that  the  particular  estate  may 
chance  to  be  determined,  and  the  remainder  never  take 
effect. 

First,  they  may  be  limited  to  a  dubious  and  uncertain  per- 
son. As  if  A.  be  tenant  for  life,  with  remainder  to  B.'s  eld- 
est son  (then  unborn)  in  tail;  this  is  a  contingent  re- 
mainder, for  it  is  uncertain  whether  B.  will  have  a  son  or 
no :  but  the  instant  that  a  son  is  born,  the  remainder  is  no 
longer  contingent,  but  vested.  Though,  if  A.  had  died  be- 
fore the  contingency  happened,  that  is,  before  B.'s  son  was 
born,  the  remainder  would  have  been  absolutely  gone ;  for 
the  particular  estate  was  determined  before  the  remainder 
could  vest.  Nay,  by  the  strict  rule  of  law,  if  A.  were  tenant 
for  life,  remainder  to  his  eldest  son  in  tail,  and  A.  died  with- 
out issue  born,  but  leaving  his  wife  enceinte,  or  big  with 
child,  and  after  his  death  a  posthumous  son  was  born,  this 
son  could  not  take  the  land  by  virtue  of  this  remainder ;  for 
the  particular  estate  determined  before  there  was  any  person 
in  esse,  in  whom  the  remainder  could  vest.  But,  to  remedy 
this  hardship,  it  is  enacted  by  statute  10  &  n  W.  III.  c.  16, 
that  posthumous  children  shall  be  capable  of  taking  in  re- 
mainder, in  the  same  manner  as  if  they  had  been  born  in 
their  father's  lifetime :  that  is,  the  remainder  is  allowed  to 
vest  in  them,  while  yet  in  their  mother's  womb. 

This  species  of  contingent  remainders  to  a  person  not  in 
being,  must,  however,  be  limited  to  some  one,  that  may,  by 
common  possibility,  or  potcntia  propinqua,  be  in  esse  at  or 
before  the  particular  estate  determines.  As  if  an  estate  be 
made  to  A.  for  life,  remainder  to  the  heirs  of  B.;  now,  if  A. 
dies  before  B.,  the  remainder  is  at  an  end ;  for  during  B.'s 
life  he  has  no  heir,  nemo  est  haeres  viventis:  but  if  B.  dies 
first,  the  remainder  then  immediately  vests  in  his  heir,  who 
will  be  entitled  to  the  land  on  the  death  of  A.  This  is  a 
good  contingent  remainder,  for  the  possibility  of  B.'s  dying 
before  A.  is  potentia  propinqua,  and  therefore  allowed  in 
law.  But  a  remainder  to  the  right  heirs  of  B.  (if  there  be 


REMAINDERS.  335 

no  such  person  as  B.  in  esse}  is  void.  For  here  there  must 
two  contingencies  happen :  first,  that  such  a  person  as  B. 
shall  be  born ;  and,  secondly,  that  he  shall  also  die  during 
the  continuance  of  the  particular  estate;  which  make  it  po- 
tentia  remotissima,  a  most  improbable  possibility.  A  re- 
mainder to  a  man's  eldest  son,  who  hath  none  (we  have 
seen)  is  good,  for  by  common  possibility  he  may  have  one; 
but  if  it  be  limited  in  particular  to  his  son  John,  or  Richard, 
it  is  bad,  if  he  have  no  son  of  that  name ;  for  it  is  too  remote 
a  possibility  that  he  should  not  only  have  a  son,  but  a  son 
of  a  particular  name.  A  limitation  of  a  remainder  to  a  bas- 
tard before  it  is  born,  is  not  good :  for  though  the  law  allows 
the  possibility  of  having  bastards,  it  presumes  it  to  be  a  very 
remote  and  improbable  contingency.  Thus  may  a  re-, 
mainder  be  contingent,  on  account  of  the  uncertainty  of  the 
person  who  is  to  take  it. 

A  remainder  may  also  be  contingent,  where  the  person  to 
whom  it  is  limited  is  fixed  and  certain,  but  the  event  upon 
which  it  is  to  take  effect  is  vague  and  uncertain.  As,  where 
land  is  given  to  A.  for  life,  and  in  case  B.  survives  him,  then 
with  remainder  to  B.  in  fee:  here  B.  is  a  certain  person,  but 
the  remainder  to  him  is  a  contingent  remainder,  depending 
upon  a  dubious  event,  the  uncertainty  of  his  surviving  A. 
During  the  joint  lives  of  A.  and  B.  it  is  contingent ;  and  if 
B.  dies  first,  it  never  can  vest  in  his  heirs,  but  is  forever 
gone ;  but  if  A.  dies  first,  the  remainder  to  B.  becomes 
vested. 

Contingent  remainders  of  either  kind,  if  they  amount  to 
a  freehold,  cannot  be  limited  on  an  estate  for  years,  or  any 
other  particular  estate,  less  than  a  freehold.  Thus  if  land 
be  granted  to  A.  for  ten  years,  with  remainder  in  fee  to  the 
right  heirs  of  B.,  this  remainder  is  void ;  but  if  granted  to  A. 
for  life,  with  a  like  remainder,  it  is  good.  For,  unless  the 
freehold  passes  out  of  the  grantor  at  the  time  when  the  re- 
mainder is  created,  such  freehold  remainder  is  void :  it  can- 
not pass  out  of  him,  without  vesting  somewhere ;  and  in  the 
case  of  a  contingent  remainder  it  must  vest  in  'the  par- 


336   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

ticular  tenant,  else  it  can  vest  nowhere :  unless,  therefore, 
the  estate  of  such  particular  tenant  be  of  a  freehold  nature,  / 
the  freehold  cannot  vest  in  him,  and  consequently  the  re- 
mainder is  void. 

Contingent  remainders  may  be  defeated,  by  destroying 
or  determining  the  particular  estate  upon  which  they  de- 
pend, before  the  contingency  happens  whereby  they  become 
vested.  Therefore,  when  there  is  tenant  for  life,  with  divers 
remainders  in  contingency,  he  may,  not  only  by  his  death, 
but  by  alienation,  surrender,  or  other  methods,  destroy  and 
determine  his  own  life-estate  before  any  of  those  remainders 
vest :  the  consequence  of  which  is,  that  he  utterly  defeats 
them  all.  As,  if  there  be  tenant  for  life,  with  remainder  to 
his  eldest  son  unborn  in  tail,  and  the  tenant  for  life,  before 
any  son  is  born,  surrenders  his  life-estate,  he  by  that  means 
defeats  the  remainder  in  tail  to  his  son :  for  his  son  not  be- 
ing in  esse,  when  the  particular  estate  determined,  the  re- 
mainder could  not  then  vest :  and,  as  it  could  not  vest  then, 
by  the  rules  before  laid  down,  it  never  can  vest  at  all.  In 
these  cases,  therefore,  it  is  necessary  to  have  trustees  ap- 
pointed to  preserve  the  contingent  remainders;  in  whom 
there  is  vested  an  estate  in  remainder  for  the  life  of  the  ten- 
ant for  life,  to  commence  when  his  estate  determines.  If, 
therefore,  his  estate  for  life  determines  otherwise  than  by 
his  death,  the  estate  of  the  trustees,  for  the  residue  of  his 
natural  life,  will  then  take  effect,  and  become  a  particular 
estate  in  possession,  sufficient  to  support  the  remainders  de- 
pending in  contingency. 

DIGBY,  HIST.  REAL  PROP.,  Ch.  V.,  §  3  (2).  The  doc- 
trine of  remainders  at  common  law  came  in  process  of  time 
to  be  subject  to  a  further  complication,  which  should  be 
noticed  here.  Hitherto  remainders  have  been  treated  as 
present  or  vested  interests  where  the  enjoyment  is  postponed 
till  the  lapse  of  a  certain  specified  time  or  the  happening  of 
some  specified  event.  A  distinction  subsequently  arose  be- 
tween remainders  where  an  estate  of  future  enjoyment  was 


REMAINDERS.  337 

given  to  a  definite  existing  person  upon  an  event  certain  to 
happen,  and  where  an  estate  of  future  enjoyment  was 
created  in  favour  of  a  person  not  existing,  or  not  ascertained, 
or  was  to  come  into  effect  upon  an  event  which  might  or 
might  not  happen.  In  the  former  case  the  remainder  is  said 
to  be  vested,  in  the  latter  it  is  said  to  be  contingent. 

In  the  case  of  a  vested  remainder  nothing  interferes  with 
the  enjoyment  of  the  remainder-man,  except  the  fact  that 
the  property  is  in  the  hands  of  the  tenant  of  the  particular 
estate.  All  that  has  to  happen,  in  order  that  the  remainder- 
man may  come  into  enjoyment  of  the  property,  is  the  termi-  . 
nation  of  the  particular  estate.  Of  course  it  may  be  that 
the  person  entitled  to  the  remainder  may  as  a  fact  never 
come  into  the  enjoyment  of  the  property,  as,  for  instance, 
where  lands  are  given  to  A.  for  life,  remainder  to  B.  for 
life,  and  B.  dies  before  A.,  but  this  does  not  affect  the  fact 
that  B.'s  interest,  so  long  as  it  exists,  is  a  vested  remainder. 

On  the  other  hand,  in  the  case  of  a  contingent  re- 
mainder, according  to  the  rules  of  the  common  law,  some- 
thing must  happen  besides  the  determination  of  the  par- 
ticular estate  before  the  interest  created  can  come  into  ac- 
tual enjoyment.  If  the  remainder  be  limited  to  a  person  un- 
born or  not  ascertained,  as,  for  instance,  if  lands  be  given 
to  A.  for  life,  remainder  to  the  unborn  son  of  B.  in  tail,  in 
order  that  the  contingent  remainder  may  take  effect,  B. 
must  have  a  son  born,  or  at  least  begotten,  in  the  lifetime  of 
A.  So  soon  as  this  happens,  the  remainder  vests  in  the  son 
of  B.  In  other  words,  the  future  interest,  which  before  • 
was  a  contingent,  now  becomes  a  vested  remainder.  So  if 
lands  are  given  to  A.,  remainder  to  the  heirs  of  B.,  B.  must 
die  in  A.'s  lifetime,  for  nemo  est  haeres  viventis;  and  if  B. 
survives  A.  for  ever  so  short  an  interval,  his  heir  will  never 
take,  otherwise  there  would  be  a  period  during  which  the 
freehold  would  be  in  abeyance.  So  if  lands  are  given  to  A. 
and  B.  jointly  for  life,  remainder  to  the  survivor  in  fee,  so 
soon  as  one  dies  the  contingent  remainder  which  the  other 
had  is  turned  into  a  vested  remainder,  which  again  by  the 


338   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

operation  of  the  doctrine  of  merger  coalesces  with  the  life 
estate,  and  the  survivor  becomes  entitled  to  an  estate  in  fee 
simple  in  possession.  So  again,  if  lands  be  given  to  A.  till 
C.  returns  from  Rome,  then  to  B.  and  his  heirs,  this  is  a  con- 
tingent remainder,  for  the  estate  upon  which  the  expectant 
interest  is  limited  to  take  effect  is  determinable  on  an  event 
which  may  never  happen.  On  the  other  hand,  if  the  interest 
were  expressed  to  take  effect  after  the  death  of  A.  or  upon 
C.'s  return  from  Rome,  whichever  might  first  happen,  the 
estate  would  be  a  vested  remainder,  for  it  is  certain  that  A. 
will  die. 

The  principles  above  laid  down  will  suffice  to  explain  the 
rule  which  prevails  in  the  case  of  contingent  remainders, 
that  inasmuch  as  the  freehold  can  never  be  in  abeyance, 
"every  contingent  remainder  of  an  estate  of  freehold  must 
have  a  particular  estate  of  freehold  to  support  it."  Thus 
not  only  must  every  contingent  remainder  of  a  freehold  be 
ready  to  vest,  that  is,  to  become  a  complete  right  either  of 
present  or  of  future  enjoyment  (an  estate  in  possession  or  a 
vested  remainder)  as  soon  as  the  preceding  estate  comes  to 
an  end,  but  that  preceding  estate  must  itself,  at  common 
law,  be  an  estate  of  freehold.  Lands  cannot,  at  common 
law,  be  given  to  A.  for  ten  years,  remainder  to  the  unborn 
son  of  B.  .  .  . 

Contingent  remainders  may  be  created  in  favor  of  un- 
born persons,  provided  only  that  the  person  who  is  to  take 
the  estate  comes  into  existence  before  the  preceding  par- 
ticular estate  comes  to  an  end.  So  soon  as  the  designated 
person  is  born,  the  estate  vests  in  him.  Thus  an  estate 
might  be  given  by  way  of  remainder  to  an  unborn  person 
for  life  or  in  tail,  subject  only  to  the  rule  that  no  interest 
could  be  given  to  the  unborn  child  of  an  unborn  person.  For 
instance,  if  an  estate  be  given  to  A.  for  life,  remainder  to  his 
unborn  son  in  tail,  remainder  to  C.  in  fee,  the  first  remainder 
is  contingent,  that  is,  it  does  not  become  a  completely  vested 
interest,  for  the  reason  above  given,  till  A.  has  a  son  born. 
So  soon  as  this  happens  the  interest  is  no  longer  contingent, 


REMAINDERS.  339 

but  vested  or  complete,  and  the  son  of  A.  has  a  vested  re- 
mainder in  tail,  an  interest  which  is  ready  to  come  into  pos- 
session or  enjoyment  as  soon  as  A.'s  life  estate  determines. 
On  the  other  hand,  C.  has  an  interest  which  is  vested  or 
complete  from  the  moment  of  its  creation. 

Now  if,  before  A.  has  a  son  born,  his  life  estate  deter- 
mines by  death,  forfeiture  or  otherwise,  or  if  he  acquire  the 
fee  by  taking  a  conveyance  from  C.  of  his  interest,  in  which 
case  before  the  birth  of  a.  son  his  life  estate  would  merge 
or  become  united  to  or  lost  in  the  fee-simple,  or  if  before 
the  same  event  he  convey  his  life  interest  to  C.,  in  all  the 
above  cases  the  contingent  remainder  would,  as  the  law  for- 
merly stood,  have  been  destroyed,  and  no  after-born  son  of 

A.  would  take  any  interest  at  all.     This  liability  to  be  de- 
stroyed by  the  happening  of  any  of  the  above  events  was  the 
great  characteristic  of  contingent  remainders,  and  the  in- 
genuity of  conveyancers  was  exercised  to  prevent  so  incon- 
venient a  result.    A  recent  change  in  the  law  has  removed 
the  liability  to  destruction  to  which  contingent  remainders 
were  subject  by  reason  of    the    forfeiture,    surrender,  or 
merger  of  any  preceding  estate  of  freehold.1 

The  same  act  renders  contingent  remainders  alienable  in- 
ter vivas.  Formerly  the  chance  or  contingency  was  not  con- 
sidered an  appropriate  subject  of  alienation  inter  vivos,. 
though  it  fell  within  the  rights  capable  of  being  disposed  of 
by  will.  At  the  present  day,  if  lands  are  given  to  A.  for  life,, 
remainder,  if  C.  be  living  at  his  decease,  to  B.  and  his  heirs,, 

B.  may  dispose  of  his  contingent  interest  during  the  lives  of 
A.  and  C.  by  alienation  inter  vivos,  or  by  will,  or,  upon  his 
decease  intestate,  the  contingent  remainder  will  descend  to 
his  heir. 

LEAKE,  LAND  LAW,  323.  According  to  Fearne,  "A  con- 
tingent remainder  is  a  remainder  limited  so  as  to  depend 
on  an  event  or  condition  which  may  never  happen  or  be  per- 
formed, or  which  may  not  happen  or  be  performed  till  after 

1  8  &  9  Viet.,  c.  106,  s.  8. 


340   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

the  determination  of  the  preceding  estate."  1  And,  as  he 
afterwards  explains,  "It  is  not  the  uncertainty  of  ever  tak- 
ing effect  in  possession  that  makes  a  remainder  contingent ; 
for  to  that  every  remainder  for  life  or  in  tail  is  and  must  be 
•liable;, as  the  remainderman  may  die  or  die  without  issue 
before  the  death  of  the  tenant  for  life.  The  present  capacity 
of  taking  effect  in  possession,  if  the  possession  were  to  be- 
come vacant,  and  not  the  certainty  that  the  possession  will 
become  vacant  before  the  estate  limited  in  remainder  deter- 
mines, universally  distinguishes  a  vested  remainder  from 
one  that  is  contingent.2 

Fearne  distinguishes  four  sorts  of  contingent  remainders, 
which  may  be  shortly  exhibited  in  the  following  scheme : 
Remainders  limited.  I.  Upon  an  uncertain  event,  which 
also  determines  the  particular  estate  by  conditional  limita- 
tion. 2.  Upon  an  uncertain  event,  which  does  not  affect 
the  particular  estate.  3.  Upon  a  certain  event,  which  may 
not  happen  until  after  the  determination 'of  the  particular 
estate.  4.  To  a  person  not  ascertained  or  not  in  being.3 
But  "all  contingent  remainders  appear  to  be  so  far  reducible 
under  one  head,  that  they  depend  for  their  vesting  on  the 
happening  of  an  event,  which,  by  possibility,  may  not  hap- 
pen during  the  continuance  of  the  preceding  estate,  or  at  the 
instant  of  its  determination."  4 

ID.,  329-332.  By  the  statute  8  &  9  Vic.,  c.  106,  s.  8,  it  was 
enacted  that  "a  contingent  remainder  existing  at  any  time 
after  the  3ist  December,  1844,  shall  be  capable  of  taking 
effect  notwithstanding  the  determination  by  forfeiture,  sur- 
render, or  merger,  of  any  preceding  estate  of  freehold,  in 
the  same  manner,  in  all  respects,  as  if  such  determination 
had  not  happened." 


The   limitation  to  trustees   to    preserve    contingent   re- 
mainders was  rendered  unnecessary  by  the  above  statute,  as 

'  Fearne,  C.  R.  3.  'Fearne,  C.  R.  216. 

3  Fearne,  C.  R.  5.  4  Butler's  note  g  to  Fearne,  C.  R.  9. 


REMAINDERS.  34! 

against  the  forfeiture,  surrender,  or  merger  of  the  partic- 
ular estate.  But  it  may  still  be  necessary  or  expedient  in 
some  cases  for  preserving  contingent  remainders  against  the 
regular  determination  of  the  particular  estate :  as  in  the  case 
of  a  settlement  on  A.  for  life,  with  remainder  to  the  first  son 
of  A.,  who  shall  attain  twenty-one ;  to  preserve  which  re- 
mainder the  estate  of  the  trustees  must  be  extended  to  cover 
not  only  the  life  of  A.,  but  the  possible  minority  of  a  son 
after  his  death.  So  in  case  of  a  limitation  to  A.  for  life  with 
remainder  to  the  heir  of  B.,  in  which  case  the  estate  of  the 
trustees  must  be  extended  to  the  life  of  B.  So  where  the 
estate  for  life  is  determinable  by  a  conditional  limitation,  as 
where  it  is  subject  to  a  shifting  clause  or  proviso  for  cesser 
in  a  certain  event,  there  must  be  a  vested  estate  in  trustees  to 
take  effect  upon  such  determination  in  order  to  preserve 
contingent  remainders  until  the  expiration  of  the  life.  So 
where  it  is  required  to  limit  contingent  remainders  upon  a 
term  of  years,  a  vested  estate  of  freehold  must  be  limited  to 
support  them. 

ID.,  337.  The  limitation  of  a  contingent  remainder,  as  it 
conveys  no  estate,  but  only  a  possibility  of  an  estate  in  a 
future  event,  does  not  interfere  with  the  limitation  of  the 
freehold  subject  to  the  contingency.  Thus,  a  contingent 
remainder  for  life<or  in  tail  may  be  followed  by  the  limita- 
tion of  a  vested  remainder ;  and  such  vested  remainder  will 
give  place  to  the  contingent  remainder  upon  its  becoming 
vested  during  the  continuance  of  the  particular  estate.  As 
if  land  be  limited  to  A.  for  life,  with  remainder  to  his  first 
and  other  sons  successively  in  tail,  with  remainder  to  B.  for 
life,  with  remainder  to  his  first  and  other  sons  successively 
in  tail,  with  remainder  over. 

The  law  is  stated  by  Fearne,  with  reference  to  convey- 
ances at  common  law,  that  "where  there  is  a  contingent  lim- 
itation in  fee  absolute,  no  estate  limited  afterwards  can  be 
vested ;"  but  two  or  more  several  contingent  remainders  in 
fee  may  be  limited  as  substitutes  or  alternatives  one  for  the 
other,  so  that  one  only  take  effect,  and  every  subsequent  lim- 


342   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

itation  be  substituted  for  the  former  if  it  should   fail  of 
effect.1 

GRAY,  PERPETUITIES,  §  101.  Since  contingenfremainders 
have  been  recognized,  the  line  betweer  them  and 
vested  remainders  is  drawn  as  follows :  A  remainder  is 
vested  in  A.,  when,  throughout  its  continuance,  A.  or  A.  and 
his  heirs  have  the  right  to  the  immediate  possession,  when- 
ever and  however  the  preceding  estates  determine ;  or,  in 
other  words,  a  remainder  is  vested,  if,  so  long  as  it  lasts,  the 
only  obstacle  to  the  right  of  immediate  possession  by  the 
remainder-man  is  the  existence  of  the  preceding  estates ;  or, 
again,  a  remainder  is  vested  if  it  is  subject  to  no  condition 
precedent,  save  the  determination  of  the  preceding  estates. 

§  102.  A  remainder  is  none  the  less  vested  because  it  may 
terminate  before  the  remainder-man  comes  into  possession; 
thus  if  land  be  given  to  A.  for  life,  remainder  to  B.  for  life, 
B.  may  die  before  A.,  yet  the  remainder  is  vested,  for,  dur- 
ing its  continuance,  namely,  the  life  of  B.,  it  is  ready  to  come 
Into  possession  whenever  and  however  A.'s  estate  deter- 
mines. This  result  is  not  affected  by  the  fact  that  the  ter- 
mination of  the  remainder  is  contingent;  that  is,  that  it  is 
subject  to  a  condition  subsequent.  For  instance,  if  land  is 
-devised  to  A.  for  life,  remainder  to  B.  and  his  heirs,  but  if 
B.  dies  unmarried  then  to  C.  and  his  heirs^jB.'s  remainder  is 
vested,  although  it  is  possible  that  he  may  die  unmarried  in 
A.'s  lifetime. 

§  103.  The  law  favors  the  vesting  of  estates,  and  therefore 
prefers  to  construe  conditions  as  subsequent  rather  than 
precedent ;  so  that  when  a  condition  attached  to  a  remainder 
would  terminate  it  after  it  had  come  into  possession,  the 
condition  will  be  deemed  subsequent  and  the  remainder 
vested,  although  the  contingency  may  happen  before  the  end 
•of  the  particular  estate,  and  so  the  remainder  may  never 
come  into  possession,  as  in  the  case  put  in  the  preceding  sec- 
tion. 

1  Fearne,  C.  R.  225,  373. 


REMAINDERS.  343 

§  104.  One  class  of  cases,  however,  presents  some  diffi- 
culty, those,  namely,  in  which  the  contingency,  if  it  happens 
at  all,  must  happen  before  the  termination  of  the  particular 
estate,  and  the  coming  into  possession  of  the  remainder. 
Suppose,  for  instance,  a  gift  to  A.  for  life,  remainder  to  B. 
and  his  heirs,  but  if  B.  dies  before  the  termination  of  the 
particular  estate,  then  to  C.  and  his  heirs.  Here,  if  the  con- 
dition ever  affects  B.'s  estate  at  all,  it  will  prevent  it  from 
coming  into  possession ;  it  will  never  divest  it  after  it  has 
once  come  into  possession.  Remainders  subject  to  condi- 
tions of  this  sort  might  have  been  regarded  in  three  ways. 

§  105.  i.  If  the  law  looked  on  vested  and  contingent 
interests  with  an  impartial  eye,  it  would  seem  that  such  re- 
mainders should  be  held  contingent.  A  condition  which 
may  prevent  an  estate  coming  into  possession,  but  which 
never  can  divest  it  after  it  has  come  into  possession,  is  a 
condition  in  its  nature  precedent  rather  than  subsequent. 
But  the  preference  of  the  law  for  vested  interests  has  pre- 
vented this  view  being  adopted. 

§  106.  2.  Such  a  condition  might  be  regarded  in  all 
cases  as  a  condition  subsequent,  the  circumstance  that  the 
contingency  must  happen,  if  at  all,  at  or  before  the  end  of 
the  particular  estate  being  regarded  as  immaterial.  The 
effect  of  this  construction  would  be  to  make  a  remainder 
vested  at  any  time,  if  there  was,  at  that  time,  a  person  ready 
and  entitled  to  take  possession  as  remainder-man,  should 
the  particular  estate  then  determine,  although,  should  the 
particular  estate  determine  at  some  other  time,  such  person 
might  not  be  entitled  to  the  remainder.  Upon  this  theory, 
if  there  was  a  devise  to  A.  for  life,  remainder  to  his  surviv- 
ing children,  the  remainder  would  be  at  any  particular  mo- 
ment vested  in  the  children  who  would  survive  A.  should  he 
at  that  moment  die. 

§  107.  The  New  York  Revised  Statutes  seem  to  have  de- 
fined a  vested  remainder  in  this  sense :  "Future  estates  are 
either  vested  or  contingent.  They  are  vested  when  there  is 
a  person  in  being  who  would  have  an  immediate  right  to  the 


344   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

possession  of  the  lands  upon  the  ceasing  of  the  intermediate 
or  precedent  estate.  They  are  contingent,  whilst  the  person 
to  whom,  or  the  event  upon  which,  they  are  limited  to  take 
effect  remains  uncertain."  It  is  doubtful  whether  this  piece 
of  legislative  definition  was  intended  to  change  the  common 
law ;  but  the  courts  have  decided,  and  it  would  seem  cor- 
rectly, that  it  has  done  so.  And  it  is  conceived  that  the 
adoption  of  this  view  necessitates  the  decisions  of  the  Court 
of  Appeals,  which  at  first  appear  rather  startling,  that  since 
the  abolition  of  the  rule  in  Shelley's  Case  a  remainder  to 
heirs,  after  a  life  estate  to  the  ancestor,  is  vested. 

§  108.  3.  Neither  of  these  views  is  that  of  the  common 
law.  Whether  a  remainder  is  vested  or  contingent  depends 
upon  the  language  employed.  If  the  conditional  element  is 
incorporated  into  the  description  of  or  [into]  the  gift  to 
the  remainder-man,  then  the  remainder  is  contingent ;  but 
if,  after  words  giving  a  vested  interest,  a  clause  is  added 
divesting  it,  the  remainder  is  vested.  Thus,  on  a  devise  to 
A.  for  life,  remainder  to  his  children,  but  if  any  child  dies 
in  the  lifetime  of  A.  his  share  to  go  to  those  who  survive, 
the  share  of  each  child  is  vested,  subject  to  be  divested  by 
its  death.  But  on  a  devise  to  A.  for  life,  remainder  to  such 
of  his  children  as  survive  him,  the  remainder  is  contingent. 

§  125.  It  has  been  a  common  notion  that  to  a  certain  ex- 
tent remoteness  of  limitation  was  prevented  in  the  early 
times  by  means  of  a  supposed  rule  that  no  future  interest 
could  be  limited  to  the  unborn  child  of  an  unborn  person, 
because  such  a  limitation  would  be  a  possibility  upon  a  pos- 
sibility. But  the  idea  that  there  cannot  be  a  possibility  on 
a  possibility  seems  to  have  been  a  conceit  invented  by  Chief 
Justice  Popham.1  The  idea  is  expressed  in  different  forms. 
Thus,  it  is  said,  a  lease  could  not  "commence  upon  a  con- 
tingent which  depended  upon  another  contingent."2  "A 
possibility  which  shall  make  a  remainder  good,  ought  to  be 

'Rector  of  Chedington's  Case,   I  Co.,  153,  a,  156,  b  ;  Ckoltnley's  Case, 
2  Co.,  50,  a,  51,  6. 
9  I  Co.,  156,  b. 


REMAINDERS.  345 

a  common  possibility  and  potentia  propinqua."1  "A  possi- 
bility cannot  increase  upon  a  possibility."2  "Sometimes  one 
possibility  shall  not  beget  another."3  "The  law  will  never 
intend  a  possibility  upon  a  possibility."4  But  in  none  of 
these  shapes  does  it  meet  with  any  countenance  in  the  ear- 
lier cases. 

ID.,  p.  86,  note.  As  the  notion  of  a  possibility  on  a  pos- 
sibility had  not  roots  in  the  law.  so  it  flourished  but  a  short 
time.  In  1681  Lord  Chancellor  Nottingham,  in  the  great  case 
of  the  Duke  of  Norfolk,  said  "that  there  may  be  a  possibility 
upon  a  possibility,  and  that  there  may  be  a  contingency 
upon  a  contingency  is  neither  unnatural  nor  absurd  in  itself ; 
but  the  contrary  rule  given  as  a  reason  by  my  Lord  Popham 
in  the  Rector  of  Chcdington's  Case,  I  Co.  156,  b,  looks  like  a 
reason  of  art ;  but  in  truth  has  no  kind  of  reason  in  it,  and  I 
have  known  that  rule  often  denied  in  Westminster  Hall."  3 
Ch.  Cas.  29.  See  Mayor  of  London  v.  Alford,  Cro.  Car. 
576,  577;  Love  v.  Windham,  I  Sid.  450,  451 ;  Thellusson  v. 
Woodford,  4  Ves.  227,  327.  And  although  the  doctrine  was 
enunciated  by  Lord  Mansfield,  C.  J.,  and  Wilmot,  J.,  in 
Chapman  d.  Oliver  v.  Brown,  3  Burr.  1626,  1634,  1635,  and 
has  been  mentioned  without  disapproval  by  esteemed  writers, 
Fearne,  C.  R.,  250 ;  2  Bl.  Com.  169,  170 ;  2  Cas.  &  Op.  435 ; 
yet  it  is  now  admitted  to  be  without  force,  except  as  the 
doubtful  parent  of  the  alleged  rule  that  life  estates  cannot  be 
limited  to  successive  generations.  Fearne,  C.  R.,  251,  But- 
ler's note;  Cole  v.  Sew  ell,  4  Dr.  &  W.  i,  32;  Third  Real 
Prop.  Comm.  Rep.  29;  I  Prest.  Abs.  128;  i  Leake,  Land 
Law,  335;  Sugd.  Pow.  (8th  ed.),  393,  394;  Wms.  Real 
Prop.  (i3th  ed.),  274-277;  sees.  191-199,  post. 

N.  Y.  REAL  PROP.  LAW,  §  30.  A  future  estate  is  either 
vested  or  contingent.  It  is  vested  when  there  is  a  person  in 
being  who  would  have  an  immediate  right  to  the  possession 
of  the  property,  on  the  determination  of  all  the  intermediate 

'2  Co.,  51,  b.  »8  Co.,  75,  a. 

*3  Bulst.,  108.  4Co.  Lit.,  184,  a. 


346   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

or  precedent  estates.  It  is  contingent  while  the  person  to 
whom  or  the  event  on  which  it  is  limited  to  take  effect  re- 
mains uncertain. 

§  42.  A  future  estate,  otherwise  valid,  shall  not  be  void 
on  the  ground  of  the  improbability  of  the  contingency  on 
which  it  is  limited  to  take  effect. 

§  47.  An  expectant  estate  cannot  be  defeated  or  barred 
by  any  transfer  or  other  act  of  the  owner  of  the  inter- 
mediate or  precedent  estate,  nor  by  any  destruction  of  such 
precedent  estate  by  disseisin,  forfeiture,  surrender,  merger, 
or  otherwise;  but  an  expectant  estate  may  be  defeated  in 
any  manner,  or  by  any  act  or  means  which  the  party  creat- 
ing such  estate,  in  the  creation  thereof,  has  provided  for  or 
authorized.  An  expectant  estate  thus  liable  to  be  defeated 
shall  not,  on  that  ground,  be  adjudged  void  in  its  creation. 

§  48.  A  remainder  valid  in  its  creation  shall  not  be  de- 
feated by  the  determination  of  the  precedent  estate,  before 
the  happening  of  the  contingency  on  which  the  remainder 
was  limited  to  take  effect;  should  such  contingency  after- 
ward happen  the  remainder  shall  take  effect  in  the  same 
manner  and  to  the  same  extent  as  if  the  precedent  estate  had 
continued  to  the  same  period. 

§  49.  An  expectant  estate  is  descendible,  devisable,  and 
alienable,  in  the  same  manner  as  an  estate  in  possession. 


(<r)  Contingent  Uses  and  Devises. 

i  Co.  REP.,  129.  And  it  was  said,  that  no  uses  shall  be 
executed  by  the  stat.  of  27  H.  8.  which  are  limited  against 
the  rules  of  the  common  law,  and  the  reason  thereof  is 
manifest;  for  it  appears  by  the  preamble  of  the  stat.  of 
27  H.  8.  that  it  was  the  intent  of  the  makers  of  the  act  to 
restore  the  ancient  common  law  of  the  land,  and  to  extirpate 
and  extinguish  such  subtle  practised  feoffments,  fines,  re- 
coveries, abuses  and  errors,  tending  to  the  subversion  of  the 
good  and  ancient  common  law  of  the  land ;  so  that  it  fully 


REMAINDERS.  347 

appears  that  this  act  of  27  H.  8.  shall  not  execute  any  use 
which  'is  limited  against  the  rule  of  the  com.  law,  for  the 
intent  of  the  act  was  to  extinguish  and  extirpate  not  the 
feoffm.,  fine  or  recovery,  for  these  were  laudable  and 
good  conveyances  of  lands  and  tenements  by  the  com. 
law,  as  is  in  effect  recited  in  the  beginning  of  the  preamble ; 
but  such  uses  which  are  abuses  and  errors,  and  therefore 
erroneous  because  they  are  against  the  rule  of  the  com. 
law,  and  therefore  this  law  of  27  H.  8.  is  a  law  of  restitu- 
tion, scil.  to  restore  the  good  ancient  common  law  which 
was  in  a  manner  subverted  by  abusive  and  erroneous  uses. 
And  therefore  if  a  man  at  this  day  makes  a  feoffment  in  fee 
to  the  use  of  A.  for  years,  and  after  to  the  use  of  the  right 
heirs  of  B.  or  to  the  use  of  the  wife  of  B.  who  shall  be ;  this 
limitation  to  the  right  heirs  and  to  the  wife  is  void,  because 
it  had  been  void,  if  it  had  been  limited  in  possession,  ut  patet 
M.  2  &  3  Eliz.  Dy.  190,  191.  So  in  the  same  case,  if  the  use 
be  limited  to  A.  for  life,  and  after  to  the  use  of  the  right 
heirs  of  B.  or  to  the  wife  of  B.  who  shall  be,  if  A.  dies  and 
after  B.  dies,  or  takes  wife,  this  remainder  limited,  to  the 
right  heirs  or  to  the  wife  of  B.  is  void,  for  it  would  be  void, 
if  it  had  been  limited  in  possession.  And  the  statute  27  H. 
8.  intended  to  restore  the  good  and  ancient  common  law, 
and  not  to  give  more  privilege  to  the  execution  of  uses  than 
to  estates,  which  are  executed  by  the  ancient  common  law. 
And  in  proof  thereof,  it  was  resolved  by  all  the  Justices  of 
England,  Pasch :  35  Eliz.,  in  the  case  of  the  Earl  of  Bed- 
ford, referred  to  them  out  of  the  Court  of  Wards,  and  was 
thus  in  effect.  Francis, "Earl  of  Bedford,  made  a  feoffment 
in  fee  of  divers  manors  to  the  use  of  himselfe  for  years, 
and  after  to  the  use  of  John  Lord  Russel  his  son  and  heir 
apparent,  and  to  the  heirs  males"  of  his  body  begotten,  and 
for  want  of  such  issue  to  the  use  of  the  right  heirs  of  the 
said  Earl ;  and  afterwards  the  said  John  Lord  Russel  died 
without  issue  male  in  the  life  of  the  said  Earl ;  and  it  was 
resolved,  that  the  use  ami  estate  limited  by  way  of  re- 
mainder to  the  right  heirs  of  the  Earl  was  void,  for  it  had 


348   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

been  void,  if  it  had  been  limited  by  estate  executed  at  the 
common  law,  for  the  remainder  ought  to  vest  during  the 
particular  estate. — Chudkigh's  Case. 

Sue.  GILB.  USES,  153.  Future  or  contingent  uses  are 
properly  uses  limited  to  take  effect  as  remainders ;  for  in- 
stance, a  use  to  the  first  unborn  son  of  A.,  after  a  previous 
limitation  to  him  for  life,  or  for  years  determinate  on  his 
life,  is  a  future  or  contingent  use;  but  yet  does  not  answer 
the  notion '"of  either  a  shifting  or  a  springing  use.  They 
naturally  arose  after  the  statute  in  imitation  of  contingent 
remainders. — Sugden's  note. 

ID.,  164.  The  rule  of  law  in  regard  to  contingent  re- 
mainders of  a  freehold  interest  is  'that  a  vested  estate  of 
freehold  must  precede,  in  order  to  support  it."  See  Co.  Lit. 
143,  a;  217,  a;  and  that  it  must  vest  eo  instanti,  that  such 
previous  estate  determines.  Before  the  statute  of  uses  this 
rule  did  not  apply  to  uses,  because  the  freehold  remained  in 
the  feoffees ;  therefore,  if  before  the  statute  a  man  had  made 
a  feoffment  to*  tne  use  of  one  for  years,  remainder  to  the 
right  heirs  of  J.  S.,  this  limitation  had  been  good.  But  in 
Chudleigh's  Case,  i  Rep.  135,  Gaudy,  J.,  said  that  such  lim- 
itation after  the  statute  is  void,  for  then  the  freehold  would 
be  in  suspense,  for  nothing  can  remain  in  the  feoffees ;  and 
this  observation  was  cited  and  approved  of  by  Mr.  Justice 
Hutton,  in  Buckley  v.  Simmonds,  Winch,  60 ;  and  see  I  Atk. 
596.  But  it  appears  to  be  now  well  settled  that  where  an 
estate  is  limited  previously  to  a  Tuture  use,  and  the  future 
use  is  limited  by  way  of  remainder,  it  shall  be  subject  to  the 
rules  of  the  common  law,  and  consequently,  if  the  previous 
estate  is  not  sufficient  to  support  it,  shall  be  void.  .  .  . 

In  these  cases,  then  [Adams  v.  Savage,  2  Ld.  Raym.  885  ; 
2  Salk.  680;  Rowley  v.  Holland,  22  Vin.  Abr.  189,  pi.  n], 
it  was  solemnly  decided  that  a  future  or  contingent  use 
must,  like  *a  contingent  remainderTTiave  a  sufficient  preced- 
ing estate  to  support  it;  and  that  a  use  limited  by 'way  of  re- 
mainder shall  not»  be  construed  a  springing  use,  although 


REMAINDERS.  349 

actually  void  in  its  creation  if  not  so  considered. — Sugden's 
note. 

GILB.  DEVISES,  62.  Contingent  remainders  are  at  the 
common  law,  and  arise  in  conveyances  as  well  as  wills;  one 
may  limit  an  estate  to  A.,  the  remainder  to  another ;  and  so 
it  may  be  by  devise,  if  the  intent  of  the  parties  will  have  it 
so ;  but  as  at  the  common  law  all  contingent  remainders 
shall  not  be  good,  so  in  wills  no  such  latitude  is  given,  as  if 
none  could  be  bad ;  they  are  subject  to  the  same  fate  in  wills 
as  in  conveyances.  An  executory  devise  needs  no  particular 
estate  to  support  it,  for  it  shall  descend  to  the  heir  till  the 
contingency  happen;  it  is  not  like  a  remainder  at  common 
law,  which  must  vest  eo  instant e  that  the  particular  estate 
determines :  but  the  learning  of  executory  devises  stands  on 
the  reason  of  the  old  law,  wherein  the  intent  of  the  devisor 
is  to  be  observed ;  for,  where  it  appears  by  the  will,  that  he 
intends  not  the  devisee  to  take  but  in  futuro,  and  no  disposi- 
tion being  made  thereof  in  the  meantime,  it  shall  then 
descend  to  the  heir — till  the  contingency  happens. 

LEAKE,  LAND  LAW,  356.  Future  estates  and  interests  in 
land  taking  effect  under  the  power  of  disposition  by  will  are 
either  by  way  of  remainder,  as  at  common  law,  or  executory 
devise ;  the  latter  having  been  defined  as  "a  limitation  by 
will  of  a  future  estate  or  interest  in  land,  which  cannot, 
consistently  with  the  rules  of  law,  take  effect  as  a  re- 
mainder." * 

A  devise  by  way  of  remainder  is  regulated  by  the  rules  of 
common  law.  Accordingly,  the  devise  of  a  contingent  re- 
mainder must  vest  before  or  at  the  determination  of  the 
particular  estate ;  if  it  do  not  so  vest,  it  fails  altogether,  and 
cannot  afterwards  be  supported  as  an  executory  devise ;  thus, 

1  r  Jarman  on  Wills,  778.  According  to  Fearne,  "an  executory  devise 
is  such  a  limitation  of  a  future  estate  or  interest  in  lands  as  the  law 
admits  in  the  case  of  a  will,  though  contrary  to  the  rules  of  limitation  in 
conveyances  at  common  law."  Fearne,  C.  R.,  386. 


35°   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

where  a  devise  was  made  to  A.  for  life,  with  remainder  to 
B.  for  a  term  of  years  if  he  should  so  long  live,  and  after 
the  deaths  of  A.  and  B.  to  the  heirs  of  the  body  of  B.,  it  was 
held  that  the  devise  over  to  the  heirs  of  the  body  of  B.,  being 
a  contingent  remainder,  failed  by  the  death  of  A.  before  B.,* 
by  which  event  the  preceding  freehold  estate  was  deter- 
mined before  the  remainder  had  become  vested.1  So,  where 
the  devise  was  to  A.  for  life,  and  after  his  death  to  the  chil- 
dren of  A.  who  should  attain  twenty-one,  it  was  held  that 
the  devise  to  the  children  failed  upon  the  death  of  A.,  leav- 
ing a  child  who  did  not  attain  that  age  until  afterward  ;2  and 
that  a  devise  over  if  there  should  be  no  such  child,  being 
also  a  contingent  remainder,  failed  under  the  same  circum- 
stances.3 

(d)   Rule  in  Shelley's  Case. 

i  Co.  REP.,  104,  a.  And  as  to  what  hath  been  objected, 
that  forasmuch  as  the  limitation  was  to  the  heirs  males  of 
the  body  of  Edward  Shelley ;  and  of  the  heirs  males  of  the 
body  of  the  heirs  males  lawfully  begotten,  that  the  heirs 
males  of  the  body  of  Edward  Shelley  should  be  purchasers, 
for  otherwise  the  subsequent  words  would  be  void ;  the  de- 
fendants' counsel  answered,  that  it  is  a  rule  in  law  when  the 
ancestor  by  any  gift  or  conveyance  takes  an  estate  of  free- 
hold, and  in  the  same  gift  or  conveyance  an  estate  is  limited 
either  mediately  or  immediately  to  his  heirs  in  fee  or  in  tail; 
that  always  in  such  cases  (the  heirs)  are  words  of  limitation 
of  the  estate,  and  not  words  of  purchase.  And  that  appears 
in  40  E.  3.  fol.  9.  a.  b.  in  the  provost  of  Beverley's  case,  in 
38  E.  fol.  31.  b.  24  E.  3.  36.  b.  27.  E.  3.  fol.  87.  a.  and  in 
divers  other  books. — Shelley's  Case  (1579).* 

1  Doe  v.  Morgan,  3  T.  R.  763. 

8 Holmes  v.  Prescott,  33  L.  J.  C.  264. 

3  Perceval  v.  Perceval,  L.  R.  9  Eq.  386. 

'Estates  are  defined  and  ascertained  by  the  terms  of  limitation  in 
which  they  are  legally  expressed  and  conveyed.  "  It  is  the  province  of 
«  limitation  to  mark  the  period  or  event  for  the  commencement,  and  the 


REMAINDERS.  351 

Co.  LIT.,  22,  b.  If  a  man  make  a  gift  in  taile,  or  a  lease 
for  life,  the  remainder  to  his  own  right  heires,  this  re- 
mainder is  void,  and  he  hath  the  reversion  in  him,  for  the 
ancestor  during  his  life  beareth  in  his  body  (in  judgment 
of  law)  all  his  heires,  and  therefore  it  is  truly  said  that 
haeres  est  pars  antecessoris.  And  this  appeareth  in  a  com- 
mon case,  that  if  land  be  given  to  a  man  and  his  heires,  all 
his  heires  are  so  totally  in  him,  as  he  may  give  the  lands  to 
whom  he  will. 

DIGBY,  HIST.  REAL  PROP.,  Ch.  V.,  §  3  (2).  There  is 
one  rule  of  construction  of  great  technicality,  but  at  the 
same  time  of  much  practical  importance,  which  should  -be 
noticed  in  connection  with  the  doctrine  of  remainders.  It 
has  been  seen  that  in  a  grant  to  A.  and  his  heirs,  or  to  A. 
and  the  heirs  of  his  body,  the  words  "heirs,"  "heirs  of  his 
body,"  or  their  equivalents,  are  words  of  limitation  and  not 
of  purchase,  they  are  merely  descriptive  of  the  estatjLtakep 
by  A.,  and  do  not  express  that  any  estate  is  conveyed  to  A.'s 
heir.  The  same  rule  applies,  although  the  words  of  the 
grant  may  appear  to  convey  expressly  an  estate  to  the  heirs 
by  way  of  remainder.  Thus,  if  a  gift  be  made  to  A.  and 
after  his  decease  to  his  heirs,  or  to  A.  for  life  and  after  his 

time  of  continuance  or  duration  of  an  estate,  either  by  years,  lives,  or 
the  series  of  heirs  ;  also  the  determinable  qualities  of  an  estate  ;  as  for 
twenty-one  years,  if  A.  should  so  long  live,"  etc.  Preston's  Shepp. 
Touch.  117. 

The  use  of  words  in  limiting  or  denning  an  estate  requires  to  be 
carefully  distinguished  in  practice  from  the  use  of  words  in  appropriating 
the  estate  to  the  purchaser,  as  the  person  is  commonly  called  to  whom 
the  estate  is  destined.  Many  words,  as  "heirs,"  "issue,"  "children," 
etc.,  are  capable  of  a  double  import,  as  words  of  limitation  and  words  of 
purchase  ;  and  they  are  often  used  ambiguously,  especially  in  wills.  .  .  . 

The  word  purchase  (perquisitio)  is  applied  in  law  to  any  lawful  mode 
of  acquiring  property  by  the  person's  own  act  or  agreement,  as  distin- 
guished from  acquisition  by  act  of  law,  as  descent,  escheat  and  the  like. 
A  purchase  in  the  above  sense  includes  acquisition  not  only  under  a 
contract  of  sale  for  a  valuable  consideration,  but  also  by  gift  or  without 
Consideration,  and  by  devise. — Leake,  Land  Law,  152. 


352   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

decease  to  B.  for  life  (or  to  B.  and  the  heirs  of  his  body), 
with  an  ultimate  remainder  to  the  heirs  of  A.,  the  above  rule 
operates  to  prevent  the  vesting  of  any  estate  in  the  heir 
directly  by  the  gift;  A.  (in  the  last  ease)  has  two  estates, 
one  for  life  in  possession,  the  other  in  fee  in  remainder ;  if 
the  intermediate  estate  of  B.  be  taken  away,  merger  takes 
place,  and  A.  becomes  tenant  in  fee  in  possession.  This  doc- 
trine is  known  by  the  name  of  the  "rule  in  Shelley's  Case," 
and  may  be  stated  as  follows :  Wherever  there  is  a  limita- 
tion to  a  man  which  if  it  stood  alone  would  convey  to  him 
a  "particular"  estate  of  freehold,  followed  by  a  limitation 
to  his  heirs  or  to  the  heirs  of  his  body  (or'  equivalent  ex- 
pressions) either  immediately,  or  after  the  interposition  of 
one  or  more  other  particular  estates,  the  apparent  gift 
to  the  heirs  or  heirs  of  the  body  is  to  be  construed  as  a  limita- 
tion of  the  estate  of  the  ancestor,  and  not  as  a  gift  to  his 
heir. 

LEAKE,  LAND  LAW,  357.  The  rule  in  Shelley's  Case  ap- 
plies to  limitations  of  remainders  to  heirs,  etc.,  in  wills  in 
exactly  the  same  manner  as  in  conveyances  at  common  law ; 
that  is  to  say,  if  a  devise  be  made  to  a  person  for  an  estate  of 
freehold,  with  a  remainder,  either  immediately  following 
that  estate  or  after  other  intermediate  remainders,  to  the 
heirs  or  heirs  of  the  body  of  the  same  person,  the  word  heirs 
is  taken  as  a  word  of  limitation  and  not  of  purchase,  and  the 
remainder  vests  in  the  ancestor,  as  if  limited  to  him  and  to 
his  heirs.  Accordingly,  where  land  was  devised  to  A.  for 
life,  with  remainder  to  his  first  and  other  sons  successively 
in  tail,  with  remainder  to  the  heirs  of  A.,  and  A.  died  in  the 
lifetime  of  the  testator,  it  was  held  that  the  devise  of  the 
ultimate  remainder  lapsed  and  his  heir  took  nothing,  the 
word  heirs  being  used  as  a  word  of  limitation  and  not  of 
purchase.1 

The  rule  has  a  wider  scope  in  wills  than  in  deeds,  because 
in  wills  many  words  are  capable  of  being  used  as  equiva- 

*  Doe  v.  Colyear,  II  East.  548  ;  Goodright  v.  Wright,  I  P.  Wms.  397. 


REMAINDERS.  353 

lents  of  "heirs,"  or  "heirs  of  the  body,"  such  as  "issue," 
"children,"  and  the  like,  to  which,  when  so  construed,  the 
rule  equally  applies.  Also  in  wills  the  limitation  to  the,  heirs 
of  the  body  is  sometimes  implied,  as  on  a  devise  to  A.  for 
life  with  a  devise  over  upon  failure  of  heirs  of  his  body. 

WILLIAMS,  REAL  PROF,  (i/th  ed.),  398.  We  have  seen 
that,  according  to  feudal  law,  the  grantee  of  an  hereditary 
fief  was  considered  as  being  entitled  during  personal  enjoy- 
ment only,  that  is,  for  his  life;  while  his  heir  was  regarded 
as  having  been  endowed  with  a  substantial  interest  in  the 
land.  And  these  conceptions  seem  to  have  been  imported 
into  English  law  along  with  the  principle  of  tenure.  In 
early  times  after  the  Conquest,  therefore,  if  a  grant  of  land 
were  made  to  a  man  and  his  heirs/ his  heir,  on  his  death,  be- 
came entitled ;  and  it  was  not  in  the  power  of  the  ancestor  to 
prevent  the  descent  of  his  estate  accordingly.  He  could  not 
sell  it  without  the  consent  of  his  lord ;  much  less  could  he 
then  devise  it  by  his  will.  The  ownership  of  an  estate  in  fee- 
simple  was  then  but  little  more  advantageous  than  the  pos- 
session of  a  life  interest  at  the  present  day.  The  powers  of 
alienation  belonging  to  such  ownership,  together  with  the 
liabilities  to  which  it  is  subject,  have  almost  all  been  of  slow 
and  gradual  growth,  as  has  already  been  pointed  out.  .  .  . 
A  tenant  in  fee-simple  was,  accordingly,  a  person  who 
held  to  him  and  his  heirs ;  that  is,  the  land  was  given  to  him 
to  hold  for  his  life,  and  to  his  heirs  to  hold  alter  his  de- 
cease. It  cannot,  therefore,  be  wondered  at  that  a  gift,  ex- 
pressly in  these  terms,  "To  A.  for  his  life,  and  after  his 
decease  to  his  heirs,"  should  have  been  anciently  regarded  as 
identical  with  a  gift  to  A.  and  his  heirs,  that  is,  a  gift  in 
fee  simple.  Nor,  if  such  was  the  law  formerly,  can  it  be 
matter  of  surprise  that  the  same  rule  should  have  continued 
to  prevail  up  to  the  present  time.  Such  indeed  has  been  the 
case.  Notwithstanding  the  vast  power  of  alienation  now 
possessed  by  a  tenant  in  fee  simple,  and  the  great  liability 
of  such  an  estate  to  involuntary  alienation  for  the  purpose 


354   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

of  satisfying  the  debts  of  the  present  tenant,  the  same  rule 
still  holds;  and  a  grant  to  A.  for  his  life,  and  after  his  de- 
cease to  his  heirs,  will  now  convey  to  him  an  estate  in  fee 
simple,  with  all  its  incidents;  and  in  the  same  manner  a 
grant  to  A.  for  his  life,  and  after  his  decease  to  the  heirs 
of  his  body,  will  now  convey  to  him  an  estate  tail  as  effec- 
tually as  a  grant  to  him  and  the  heirs  of  his  body.  In  these 
cases,  therefore,  as  well  as  in  ordinary  limitations  to  A.  and 
to  his  heirs,  or  to  A.  and  the  heirs  of  his  body,  the  words 
heirs  and  heirs  of  his  body  are  said  to  be  words  of  limita- 
tion; that  is,  words  which  limit  or  mark  out  the  estate  to  be 
taken  by  the  grantee.  At  the  present  day,  when  the  heir  is 
perhaps  the  last  person  likely  to  get  the  estate,  those  words 
of  limitation  are  regarded  simply  as  formal  means  of  con- 
ferring powers  and  privileges  on  the  grantee — as  mere 
technicalities,  and  nothing  more.  But,  in  ancient  times, 
these  same  words  of  limitation  really  meant  what  they  said, 
and  gave  the  estate  to  the  heirs,  or  the  heirs  of  the  body  of 
the  grantee,  after  his  decease,  according  to  the  letter  of  the 
gift.  The  circumstance  that  a  man's  estate  was  to  go  to 
his  heir,  was  the  very  thing  which,  afterwards,  enabled  him 
to  convey  to  another  an  estate  in  fee-simple.  And  the  cir- 
cumstance, that  it  was  to  go  to  the  heir  of  his  body,  was 
that  which  alone  enabled  him,  in  after  times,  to  bar  an  estate 
tail  and  dispose  of  the  lands  entailed  by  means  of  a  com- 
mon recovery. 

ID.,  407.  The  rule  in  Shelley's  Case  .  .  .  is  still  in 
force  in  many  of  the  States  as  a  part  of  the  common  law. 
See  Siceloff  v.  Redman's  Adm.,  26  Ind.,  251,  259,  260 
.  .  .  Hileman  v.  Bonslaugh,  13  Pa.  St.  344.  In  the 
last  cited  case  the  rule  is  thus  defended  by  Gibson,  Ch.  J. : 
It  "ill  deserves,"  he  says,  "the  epithets  bestowed  on  it  in  the 
argument.  Though  of  feudal  origin,  it  is  not  a  relic  of  bar- 
barism or  a  part  of  the  rubbish  of  the  dark  ages.  It  is  a 
part  of  a  system,  an  artificial  one,  it  is  true,  but  still  a  sys- 
tem, and  a  complete  one.  The  use  of  it,  while  fiefs  were 
predominant,  was  to  secure  the  fruits  of  the  tenure  by  pre- 


REMAINDERS.  355 

venting  the  ancestor  from  passing  the  estate  to  the  heir,  as 
a  purchaser,  through  a  chasm  in  the  descent  disencumbered 
of  the  burdens  incident  to  it  as  an  inheritance ;  but  Mr.  Har- 
grave,  Mr.  Justice  Blackstone,  Mr.  Fearne,  Chief  Baron 
Gilbert,  Lord  Chancellor  Parker,  and  Lord  Mansfield 
ascribe  it  to  concomitant  objects  of  more  or  less  value  at 
this  day ;  among  them,  the  unfettering  of  estates,  by  vesting 
the  inheritance  in  the  ancestor,  and  making  it  alienable  a 
generation  sooner  than  it  would  otherwise  be.  However 
that  may  be,  it  happily  falls  in  with  the  current  of  our  pol- 
icy. By  turning  a  limitation  for  life,  with  remainder  to 
heirs  of  the  body,  into  an  estate  tail,  it  is  the  handmaid  not 
only  of  Taltarum's  Case,  but  of  our  statute  for  barring  en- 
tails by  a  deed  acknowledged  in  court ;  and  where  the  limita- 
tion is  to  heirs  general,  it  cuts  off  what  would  otherwise  be 
a  contingent  remainder,  destructible  only  by  a  common  re- 
covery. In  a  masterly  disquisition  on  the  principles  of  ex- 
pounding dispositions  of  real  estate,  Mr.  Hayes,  who  has 
sounded  the  profoundest  depths  of  the  subject,  is  by  no 
means  clear  that  the  rule  ought  to  be  abolished,  even  by  the 
legislature ;  and  Mr.  Hargrave  shows  in  one  of  his  tracts 
that  to  engraft  purchase  on  descent  would  produce  an  am- 
phibious species  of  inheritance,  and  confound  a  settled  dis- 
tinction in  the  law  of  estates.  It  is  admitted  that  the  rule 
subverts  a  particular  intention  in,  perhaps,  every  instance; 
for,  as  was  said  in  Roe  v.  Bedford,  4  Maule  &  Selw.  363,  it 
is  proof  against  even  an  express  declaration  that  the  heirs 
shall  take  as  purchasers.  But  it  is  an  intention  which  the 
law  cannot  indulge  consistently  with  the  testator's  general 
plan,  and  which  is  necessarily  subordinate  to  it.  It  is  an  in- 
tention to  create  an  inalienable  estate  tail  in  the  first  donee ; 
and  to  invert  the  rule  of  interpretation,  by  making  the  gen- 
eral intention  subservient  to  the  particular  one.  A  donor  is 
no  more  competent  to  make,  tenancy  for  life  a  source  of  in- 
heritable succession,  than  he  is  competent  to  create  a  per- 
petuity, or  a  new  canon  of  descent.  The  rule  is  too  inti- 
mately connected  with  the  doctrine  of  estates  to  be  separated 


356   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

from  it  without  breaking  the  ligament  of  property.  It  pre- 
vails in  Maryland,  Georgia,  Tennessee,  as  well  as,  perhaps, 
in  most  of  the  other  States;  and  it  prevailed  in  New  York 
till  it  was  abolished  by  statute.  We  have  no  such  statute, 
and  it  has  always  been  recognized  by  this  court  as  a  rule  of 
property."  ...  In  many  and,  probably,  in  most  of  the 
States,  the  rule  is  not  looked  upon  with  the  same  favor.  Thus, 
in  Siceloff  v.  Redman's  Adm.,  cited  supra,  the  Supreme 
Court  of  Indiana,  speaking  through  Elliot,  J.,  says:  "The 
rule  in  Shelley's  Case  is  a  rule  of  the  common  law,  and 
as  the  common  law  has  been .  adopted  in  this  State  by 
statute,  the  rule  is  binding  upon  the  courts  as  a  law  of 
real  property  in  Indiana.  It  may  be  remarked  that  what- 
ever reasons  may  have  once  existed  for  it  in  England  have, 
even  there,  long  since  ceased,  and  no  good  reason  is  per- 
ceived for  its  incorporation  into  the  legal  policy  of  this 
country.  It  -was  doubtless  introduced  into  many  of  the 
other  States,  as  into  this,  as  a  part  of  the  common  law,  with- 
out discussion  or  question  as  to  its  propriety,  but  it  has  been 
abrogated  in  many  of  them  by  statute,  especially  in  its  appli- 
cation to  devises.  ...  Its  propriety  as  a  rule  of  law, 
in  this  State,  is  seriously  doubted,  and  it  may  be  regretted 
that  the  attention  of  the  legislature  has  not  been  directed  to 
the  propriety  of  its  repeal,  as  its  only  effect,  and  more  par- 
ticularly in  its  application  to  devises,  is  to  defeat  the  real 
intention  of  testators."  ...  In  Bclslay  v.  Engel,  107  111. 
182,  186,  the  Supreme  Court,  speaking  through  Justice  Scott, 
says :  The  rule  in  Shelley's  Case  "is,  at  most,  a  technical  rule 
of  construction,  and  has  always,  since  the  decision  in  Perrin 
v.  Blake,  4  Burr.  2579,  given  way  to  the  clear  intention  of 
the  testator  or  donor,  when  that  intention  could  be  ascer- 
tained from  the  instrument  in  which  the  words  supposed  to 
be  words  of  limitation  were  used.  This  rule  will  control,  un- 
less where  it  contravenes  some  settled  principle  of  law, 
otherwise,  instead  of  being  a  rule  by  which  justice  could  be 
administered,  it  would  be  a  source  of  incalculable  mischief 
in  its  practical  application." 


REMAINDERS.  357 

That  the  rule  is  not  regarded  with  favor  in  this  country 
is  further  apparent  in  that  it  has  been  abolished  by  statute 
in  many  of  the  States.  It  has  been  abolished  in  California 
(Cal.  Civ.  Code,  1886,  sec.  779),  Connecticut  (Gen.  Stat, 
1888,  sec.  2953),  Dakota  (Comp.  Laws,  1887,  sec.  2752), 
Kentucky  (Gen.  Stat.  of  Ky.,  Bullitt  &  Feland,  chap.  63, 
art.  i,  sec.  10;  see,  also,  Truman  v.  White's  Heirs,  4  B. 
Monr.  560,  570),  Massachusetts  (Pub.  Stat.,  1882,  chap. 
126,  sec.  4),  Michigan  (2  Howell's  Ann.  Stat.  sec.  5544), 
Minnesota  (Kelly's  Stat.  1891,  sec.  3984),  Mississippi 
(Ann.  Code,  1892,  sec.  2446),  New  York  (i  R.  S.  725,  sec. 
28;  8th  ed.,  vol.  4,  p.  2433,  sec.  28),  Virginia  (Code,  1887, 
sec.  2423),  West  Virginia  (Code,  1891,  chap.  71,  sec.  n), 
Wisconsin  (Ann.  .Stat.  Sanborn  &  Berryman,  sec.  2052), 
and,  probably,  in  other  States.  The  rule  has  been  abolished 
in  the  case  of  zvills  only  in  Kansas  (Gen.  Stat.,  1889,  sec. 
7256),  New  Hampshire  (Pub.  Stat.,  chap.  186,  sec.  8),  New 
Jersey  (Rev.  of  1877,  Descent,  sec.  10),  Ohio  (R.  S. 
Giauque's  ed.,  1890,  sec.  5968)  and  Oregon  (2  Hill's  Ann. 
Laws,  sec.  3093). — Hutchins'  note. 

N.  Y.  REAL  PROP.  LAW,  §  44.  Where  a  remainder  shall 
be  limited  to  the  heirs,  or  heirs  of  the  body,  of  a  person  to 
whom  a  life  estate  in  the  same  premises  is  given,  the  per- 
sons who,  on  the  termination  of  the  life  estate  are  the  heirs 
or  heirs  of  the  body,  of  such  tenant  for  life,  shall  take  as 
purchasers,  by  virtue  of  the  remainder  so  limited  to  them. 


CHAPTER  IV. 

OTHER  FUTURE  INTERESTS. 

(a)  Rights  of  Entry. 

LIT.,  §  351.  But  in  such  cases  of  feoffment  upon  con- 
dition, where  the  feoffor  may  lawfully  enter  for  the  condi- 
tion broken,  etc.,  there  the  feoffor  hath  not  the  freehold  be- 
fore his  entrie,  etc. 

Co.  LIT.,  265,  a.  Note,  that  jus,  or  right,  in  generall 
signification  includeth  not  onely  a  right  for  the  which  a  writ 
•of  right  cloth  lie,  but  also  any  title  or  claime,  either  by  force 
•of  a  condition,  mortmaine,  or  the  like,  for  the  which  no  ac- 
tion is  given  by  law,  but  only  an  entry. 

LEAKE,  LAND  LAW,  59.  A  right  of  entry  was  not  assign- 
able at  common  law  by  deed,  nor  by  will ;  though  it  might 
be  released  to  the  person  in  actual  seisin  of  the  freehold ; 
.and  if  not  so  released  it  descended  to  the  heir.  A  right  of 
entry,  whether  immediate  or  future,  and  whether  vested  or 
contingent,  may  now  be  disposed  of  by  deed,  8  &  9  Viet., 
c.  1 06,  s.  6 ;  and  may  be  devised  by  will,  I  Viet.,  c.  26,  s..  3 ; 
.and  will  descend  in  the  same  manner  as  the  land,  if  recovered, 
would  descend,  3  &  4  W.  4,  c.  106,  ss.  I,  2. 

i  SHARS.  &  B.,  LEAD.  CAS.,  141.  A  forfeiture  may  be 
*taken_advantage  of  by  the  grantor  and  his  heirs  .  .  .  and 
the  heir"  need  not  be  expressly  named  in  the  instrument 
creating  the  condition  to  entitle  him  to  take  advantage  of  a 
breach  thereof,  occurring  either  in  the  lifetime  of  the  grantor 
.or  after  his  death  .  .  .  and  to  have  any  effect  upon  the 
•  estate  the  condition  must  be  taken  advantage  of  by  those 
to  whom  the  right  so  to  do  belongs ;  and  it  may  be  stated  as 
ja  general  rule  that  with  the  breach  of  a  condition  a  stranger 


OTHER    FUTURE    INTERESTS.  359 

has  nothing  to  do,  and  a  court  will  not  examine  at  his  re- 
quest, or  in  a  collateral  proceeding,  the  question  whether  a 

condition  has  been  broken  and  a  forfeiture  incurred. 

*  *  *  -jf  *  *  * 

The  right  to  take  advantage  of  a  condition  cannot  be  con- 
veyed so  as  to  give  the  assignee  a  right  to  enforce  it,  but  the 
conveyance  will  be  so  far  effective  that  it  will  destroy  the" 
right  of  the  grantor  to  enforce  it,  thus  practically  destroy- 
ing the  condition  .  .  .  (Rice  v.  Boston  and  Worcester 
R.  R.,  12  Allen,  141)  ;  and  the  effect  is  not  altered  by  the 
fact  that  the  person  to  whom  the  conveyance  was  made  is 
the  same  who  could  subsequently  have  claimed  the  condition 
as  heir  of  the  grantor  (Rice  v.  R.  R.,  supra)  ;  nor,  it  seems, 
is  the  case  different  where  the  conveyance  is  by  force  of  law, 
as  one  made  under  an  insolvent  act.  Stearns  v.  Harris,  8 
Allen,  597.  A  devisee  of  a  condition  cannot  take  advantage 
of  it  .  .  .  except  where  a  condition  is  rendered  devis- 
able by  statute. 

ID.,  150.  A  question  has  sometimes  been  made  as  to  what 
estate  the  grantor  after  re-entry  for  forfeiture  is  possessed 
of ;  and  the  better  opinion  seems  to  be  that  he  is  seised  as 
of  his  original  estate.  It  is  true  that  this  position  is  denied 
by  Ruggles,  C.  J.,  in  the  course  of  his  interesting  and  in- 
structive opinion  in  De  Peyster  v.  Michael,  6  N.  Y.,  467. 
Speaking  of  the  right  of  re-entry,  the  learned  judge  says: 
"It  is  not  a  reversion,  nor  is  it  the  possibility  of  a  reversion, 
nor  is  it  any  estate  in  the  land.  It  is  a  mere  right  or  chose 
in  action,  and  if  enforced  the  grantor  would  be  in  by  the  for- 
feiture of  a  condition  and  not  by  reverter." 

The  current  of  authority  is,  however,  the  other  way. 
Coke,  202,  a,  says:  "Regularly  it  is  true  that  he  that  en- 
tereth  for  a  condition  broken,  shall  be  seised  in  his  first 
estate  or  of  that  estate  which  he  had  at  the  time  of  the  es- 
tate made  upon  condition,"  and  states  certain  exceptions  to 
the  rule  on  account  of  impossibility,  as  where  the  reverter  is 
to  one  seised  in  right  of  a  wife  who  has  died  before  breach 
— of  necessity,  as  where  a  cestui  que  use  prior  to  the  Statute 


360   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

of  Uses  had  made  a  feoffment  and  had  entered  for  condition 
broken — or  with  regard  to  certain  collateral  qualities.  This 
is  recognized  as  the  law  on  this  side  of  the  Atlantic  in  The 
Proprietors  of  the  Church  in  Brattle  Street  v.  Grant,  3 
Gray,  142.  Bigelow,  J.,  said :  "A  grant  of  a  fee  on  condi- 
tion only  creates  an  estate  of  a  base  or  determinable  nature 
in  the  grantee,  leaving  the  right  or  possibility  of  reverter 
vested  in  the  grantor."  .  .  . 

It  follows  from  the  above  position  that  any  lien  upon  or 
right  obtained  by  a  third  party  in  an  estate  held  subject  to 
a  condition  will  be  destroyed  upon  a  re-entry  by  the  grantor 
for  a  breach  of  condition ;  and  a  grantor  is  under  no  obliga- 
tion to  regard  any  supposed  rights  which  a  creditor  of  the 
grantee  has  acquired  in  the  conditional  estate.  Thus  in  a 
case  where,  in  April,  1857,  a  creditor  of  the  grantee  of  an 
estate  on  condition  made  a  levy  on  the  estate,  and  in  May  of 
the  same  year  the  grantor  formally  entered  for  condition 
broken,  and  in  1859  took  actual  possession  of  the  premises, 
it  was  held  that  there  being  no  evidence  of  collusion 
between  the  grantor  and  grantee,  the  creditor  acquired  no 
right  as  against  the  former.  Thomas  v.  Record,  47  Me. 
500. 

12  N.  Y.  REP.,  121.  A  mere  failure  to  perform  a  con- 
dition subsequent  does  not  divest  the  estate.  The  grantor 
or  his  heirs  may  not  choose  to  take  advantage  of  the  breach, 
and  until  they  do  so,  by  entry,  or  by  what  is  now  made  by 
statute  its  equivalent,  there  is  no  forfeiture  of  the  estate. 
This  was  the  common  law,  and  it  has  not  been  altered  by 
statute  so  as  to  give  a  right  of  entry  to  an  assignee  in  any 
instance  not  coupled  with  a  reversionary  interest,  as  in  the 
cases  of  estates  for  years  and  for  life,  except  in  cases  of 
leases,  or  rather  of  grants  in  fee,  reserving  rent.  To  that 
extent  the  law  was  changed  in  England  by  32  Henry  VIII., 
ch.  34;  and  similar  enactments  have  been  made  in  several 
of  the  States.  In  this  State  these  provisions  will  be  found 
at  i  R.  S.  748,  sees.  23,  24  and  25,  and  are  limited  to  grants 


OTHER    FUTURE    INTERESTS.  361 

or  leases  in  fee  reserving  rents,  and  to  leases  for  lives  and 
for  years.  As  to  other  grants  upon  condition,  the  com- 
mon law  is  unchanged.  2  Kent,  123. 

There  was  a  reason  for  the  statutory  change  in  the  par- 
ticular cases  mentioned ;  for  in  them  the  grantor  had  an  in- 
terest independent  of  the  possibility  of  reverter.  In  the 
cases  of  a  grant  or  lease  in  fee,  though  the  grantor  has  no 
reversion,  he  has  an  interest  by  way  of  annual  rents  re- 
served, and  in  the  cases  of  leases  for  lives  and  years,  he  has 
an  actual  reversion  of  what  remains  after  the  expiration  of 
the  particular  estates.  In  these  cases,  therefore,  he  has  a 
vested  interest,  and  may  well  be  permitted  to  assign  with  it, 
and  his  assignee  to  take  with  such  interest  his  right  of  entry 
for  non-performance  of  a  condition  subsequent;  for  the 
right  to  enforce  a  forfeiture  is  necessary  to  the  collection  of 
the  rents  and  to  the  protection  and  enjoyment  of  the  rever- 
sion. But  where  a  fee  simple,  without  a  reservation  of 
rents,  is  granted  upon  a  condition  subsequent,  as  in  this 
case,  there  is  no  estate  remaining  in  the  grantor.  There  is 
simply  a  possibility  of  reverter,  but  that  is  no  estate.  There 
is  not  even  a  possibility  coupled  with  an  interest,  but  a  bare 
possibility  alone.  It  has  been  said  such  possibilities  were 
assignable  in  equity;  but  those  were  interests  of  a 
very  different  character,  as  I  will  presently  show.  So  far 
from  including  these,  Kent  says  (4  Kent,  Com.  130)  :  "A 
court  of  equity  will  never  lend  its  aid  to  divest  an  estate  for 
the  breach  of  a  condition  subsequent,"  and  the  chancellor 
acted  upon  that  rule  in  Livingston  v.  Stickles,  8  Paige,  398. 

All  contingent  and  executory  interests  were  assignable  in 
equity,  and  would  be  enforced  if  made  for  a  valuable  con- 
sideration. 4  Kent,  269.  But  these  words  had  an  ascer- 
tained legal  signification ;  and  it  was  never  claimed  that 
they  were  applicable  to  a  case  like  that  under  consideration. 
It  will  hardly  be  pretended  that  Dederer's  possibility  of  re- 
verter was  a  contingent  or  an  executory  interest,  in  the  legal 
sense  of  these  words. 

By  the  Revised  Statutes  (i  R.  S.  725,  sec.  35),  expectant 


362   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

estates  are  descendible,  devisable  and  alienable,  in  the  same 
manner  as  estates  in  possession ;  and  it  is  claimed  that 
Dederer  had  an  expectant  estate.  But  we  are  relieved  from 
all  doubt  on  this  point,  by  the  fact  that  the  statute  itself  has 
furnished  the  definition  of  the  term  "expectant  estates." 
They  are  described  (i  R.  S.  723,  sec.  9)  as  including  future 
estates  and  reversions ;  and  these  expressions  are  also  defined 
in  sees.  10  and  12.  A  future  estate  is  one  limited  to  com- 
mence in  possession  at  a  future  day,  either  without  the  in- 
tervention of  a  precedent  estate,  or  on  the  determination, 
by  lapse  of  time  or  otherwise,  of  a  precedent  estate  created 
at  the  same  time.  And  by  sec.  13  a  future  estate  is  said  to 
be  vested,  where  there  are  persons  in  being  who  would 
have  an  immediate  right  to  the  possession  of  the  lands,  upon 
the  ceasing  of  the  intermediate  or  precedent  estate;  and 
"contingent,"  whilst  the  person  to  whom,  or  the  event  upon 
which  they  are  limited  to  take  effect,  remains  uncertain.  A 
reversion  is  defined  as  the  residue  of  an  estate  left  in  the 
grantor  or  his  heirs,  or  in  the  heirs  of  a  testator,  commenc- 
ing in  possession  on  the  determination  of  the  particular 
estate  granted  or  devised.  I  have  been  thus  particular  in 
transcribing  these  statutory  definitions  of  "expectant  es- 
tates," to  show,  what  is  apparent,  that  they  are  not  in  the 
least  applicable  to  the  case  under  consideration.  Though, 
as  Chancellor  Walworth  said  in  7  Paige,  76:  "They  in- 
clude every  present  right  and  interest,  either  vested  or  con- 
tingent, which  may  by  possibility  vest  at  a  future  day,"  yet 
they  do  not  include  the  mere  possibility  of  a  reverter,  which 
the  grantor  has  after  he  has  conveyed  in  fee  on  condition 
subsequent.  He  has  no  present  right  or  interest  whatever, 
and  no  more  control  over  it  than  a  son  has  in  the  estate  of 
his  father  who  is  living.  The  provision  of  the  Revised  Stat- 
utes, by  which  expectant  estates  are  made  alienable,  no 
doubt  covers  the  same  class  of  interests  which,  before,  were 
only  assignable  in  equity.  They  are  now  assignable  at  law 
as  well  as  in  equity. 

Kent  says  (4  Com.,  370),  that  the  grantor  of  an  estate  upon 


OTHER    FUTURE    INTERESTS.  363 

condition  has  only  a  possibility  of  reverter  and  no  reversion ; 
and  in  the  note  to  page  1 1  of  the  same  volume  he  says : 
"There  is  only  the  possibility  of  reverter  left  in  the  grantor 
and  not  an  actual  estate,"  citing  Martin  v.  Strahan,  5  Term 
R.  107,  note.  For  examples  illustrating  the  distinction  be- 
tween a  naked  possibility  and  a  possibility  coupled  with  an 
interest,  see  4  Kent.,  Com.  262,  note  b,  and  Jackson  v.  Wal- 
dron,  13  Wendell,  178,  and  For  fescue  v.  Satterthwaite,  i 
Iredell,  N.  C.,  R.  570.— Per  Parker,  J.,  in  Nicoll  v.  N.  Y.  & 
E.  R.  R.  Co.  (1854). 


(&)  Possibilities  of  Reverter. 

FEARNE,  REM.,  381.  It  is  generally  understood  that  lands 
were  granted  originally  for  the  life  only  of  the  grantee,  then 
to  him  and  his  lineal  heirs,  and  then  to  him  and  his  lineal 
and  collateral  heirs :  and  that  on  every  such  grant,  whether 
it  were  for  life,  or  in  fee,  a  right  remained  in  the  grantor  to 
the  services  of  the  grantee,  during  the  continuance  of  his 
estate,  and  to  a  return  of  the  land,  on  its  expiration. 
Whether  this  right  of  the  grantor  depended  on  an  estate  for 
life,  or  in  fee,  it  was  of  the  same  nature,  and  indifferently 
called  his  Reverter  or  Escheat;  but,  from  the  remoter  prob- 
ability of  the  return,  when  the  fee  was  granted,  it  became 
customary  to  call  it  after  a  grant  of  the  fee  his  Possibility  of 
Reverter;  by  degrees  that  expression  was  applied  to  those 
cases  only  where  a  limited  fee  had  been  granted,  and  the 
word  escheat  was  applied  to  those  where  the  grant  had  con- 
ferred an  absolute  estate  in  fee  simple.  A  grant  to  a  man 
and  the  heirs  of  his  body  was  at  common  law  a  limited  fee ; 
and  therefore,  after  such  a  grant,  a  possibility  of  reverter 
was  said  to  remain  in  the  grantor.  When  the  statute  De 
Donis  converted  such  fees  into  estates  tail,  the  return  of  the 
land  was  secured  by  it  to  the  donor,  and  was  called  his  re- 
verter. In  all  these  cases  the  words  reverter  and  reversion 
are  synonymous. — Butler's  note. 


364   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

GRAY,  PERPETUITIES,  §  13.  Possibilities  of  Revert er. — 
Some  estates  were  terminable  by  special  or  collateral  limi- 
tations; for  instance,  an  estate  to  A.  till  B.  returned  from 
Rome ;  or  an  estate  to  A.  and  his  heirs  until  they  ceased  to 
be  tenants  of  the  Manor  of  Dale.  On  the  happening  of  the 
contingency,  the  grantor  was  in  of  his  old  estate  without 
entry.  The  estate  was  not  cut  short,  as  it  would  have  been 
by  entry  for  breach  of  condition,  but  expired  by  the  terms 
of  its  original  limitation.  After  a  life  estate  of  this  kind  a 
remainder  could  be  limited.  After  a  fee  there  could  be  no 
remainder ;  but  there  was  a  so-called  possibility  of  reverter 
to  the  feoft'or  and  his  heirs  which  was  not  alienable. 

§  31.  These  rights,  as  their  name  implies,  were  rever- 
sionary rights;  but  a  reversionary  right  implies  tenure, 
and  the  Statute  Quia  Emp tores  put  an  end  to  tenure  be- 
tween the  grantor  of  an  estate  in  fee  simple  and  the  grantee. 
Therefore,  since  the  statute,  there  can  be  no  possibility 
of  reverter  remaining  in  the  grantor  upon  the  conveyance 
of  a  fee;  or,  in  other  words,  since  the  statute  there  can 
be  no  fee  with  a  special  or  collateral  limitation ;  and  the 
attempted  imposition  of  such  a  limitation  is  invalid.  The 
distinction  between  a  right  of  entry  for  condition  broken 
and  a  possibility  of  reverter  is  this :  after  the  statute,  a 
feoffor,  by  the  feoffment,  substituted  the  feoffee  for  him- 
self as  his  lord's  tenant.  By  entry  for  breach  of  condition 
he  avoided  the  substitution,  and  placed  himself  in  the  same 
position  to  the  lord  which  he  had  formerly  occupied.  The 
right  to  enter  was  not  a  reversionary  right  coming  into 
effect  on  the  termination  of  an  estate,  but  was  the  right  to 
substitute  the  estate  of  the  grantor  for  the  estate  of  the 
grantee.  A  possibility  of  reverter,  on  the  other  hand,  did 
not  work  the  substitution  of  one  estate  for  another,  but  was 
essentially  a  reversionary  interest — a  returning  of  the  land 
to  the  lord  of  whom  it  was  held,  because  the  tenant's  estate 
had  determined. 

§  32.  In  accordance  with  the  doctrine  of  the  forego- 
ing section,  no  possibility  of  reverter  after  a  qualified  fee 


OTHER    FUTURE    INTERESTS.  365 

has  been  sustained  in  England  since  the  Statute  Quia  Emp- 
tores.  .  ,  . 

§  38.  In  Pennsylvania  (if  Wallace  v.  Harmstad1  is  un- 
sound) and  in  South  Carolina  tenure  exists  and  the  Stat- 
ute Quia  Emptores  is  [not]  in  force.  In  these  States,  there- 
fore, apart  from  the  question  of  remoteness,  qualified  fees 
may  be  valid.  In  Scheets  v.  Fitswater,2  Penn.  R.  R.  Co.  v. 
Parke^  and  Henderson  v.  Hunter*  it  was  assumed  that 
fees  simple  determinable  might  be  created. 

§  39.  In  the  other  States  there  is  either  no  tenure  at 
all  or,  where  there  is  tenure,  there  is  no  good  reason  to 
doubt  the  existence  of  the  Statute  Quia  Emptores.  In 
neither  case  can  there  be  any  possibility  of  reverter.  As  in 
England,  so  in  the  United  States,  there  are,  however,  sev- 
eral cases  which  speak  of  such  interests  as  possible. 

§  40.  Leonard  v.  Burr.5  Devise  to  A.  of  the  use  of 
land  until  Gloversville  was  incorporated  into  a  village,  and 
then  to  the  trustees  of  said  Gloversville.  The  Court  of  Ap- 
peals held  that  the  devise  over  to  the  trustees  was  void,  and 
that  A.  took  a  determinable  fee.  The  precise  point  was 
passed  upon,  because  if  A.  to'ok  a  fee  simple  subject  to  a  void 
executory  devise,  he  would  have  an  absolute  estate,  whereas 
it  was  held  that  on  the  incorporation  of  Gloversville  the  land 
reverted  to  the  grantor's  heirs.  This  is  the  only  reported 
decision  (outside  of  Pennsylvania)  of  the  highest  court  of 
any  State  distinctly  based  on  the  existence  of  a  possibility  of 
reverter.  It  is  submitted  that  the  decision  was  incorrect, 
and  that  in  truth  there  was  a  devise  to  A.  in  fee,  subject  to 
a  bad  executory  devise,  and  that  therefore  A.  took  a  fee 
simple  absolute. 

§  41.  From  the  foregoing  examination  of  the  au- 
thorities it  appears  that  Leonard  v.  Burr  is  the  only  weighty 
case  reported  on  either  side  of  the  Atlantic,  since  the  pas~ 
sage  of  the  Statute  of  Quia  Emptores,  in  which  the  validity 
of  a  possibility  of  reverter  has  been  clearly  adjudicated. 

1  44  Pa.  492.  3  5  Pa.  126.  342  Pa.  31. 

4  59  Pa.  335.  5 18  N.  Y.  96. 


366   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

The  question  may  naturally  arise,  Why  inquire  so  curiously 
as  to  the  validity  of  a  common-law  possibility  of  reverter, 
since  by  a  shifting  use  or  an  executory  devise  to  the  grantor 
the  same  result  can  be  reached?  The  answer  is:  Shifting 
uses  and  executory  devises  are,  past  a  doubt,  subject  to  the 
Rule  against  Perpetuities;  but  it  is  not  universally  agreed 
that  possibilities  of  reverter  are  so.  Therefore,  if  this  lat- 
ter class  of  interests  are  valid,  and  are  not  subject  to  the 
objection  of  remoteness,  interests  may,  by  means  of  them, 
be  created  in  a  grantor  and  his  heirs,  which  may  not  come 
into  possession  for  centuries.  It  is  submitted  that  theory 
and  policy  alike  agree  in  denying  the  existence  at  the  pres- 
ent day  of  such  possibilities  of  reverter,  and  that  the  allu- 
sions to  them  as  actual  rights  in  the  books  are  outweighed 
by  the  fact  of  their  non-appearance  in  practice. 


(c)  Escheat. 

GLANVILL,  vii.,  c.  17.  The  ultimate  heir  of  a  free-holder 
is  his  lord.  When,  therefore,  any  one  dies  without  an 
ascertained  heir,  as,  for  instance,  without  a  son  or  a 
daughter,  or  without  any  person  who  is  unquestionably  the 
next  and  rightful  heir,  the  lord  may  and  usually  does  take 
into  his  hands  that  fee  as  an  escheat  and  retain  it,  whether 
the  lord  be  the  king  or  another. 

i  EDEN,  227.  This  brings  me  to  consider  the  nature  of 
this  right  by  escheat.  It  has  been  truly  said  in  the  beginning 
of  feodal  tenure  this  right  was  a  strict  reversion.  The  grant 
determined  by  failure  of  heirs,  the  land  returned  as  it  did 
upon  the  expiration  of  any  less  temporary  interest.  It  was 
no  fruit,  but  the  extinction  of  tenure  (as  Mr.  Justice  Wright 
says),  it  was  the  fee  returned. 

This  holds  equally,  whether  the  investiture  was  to  general 
or  special  heirs;  for,  originally,  by  the  feudal  law,  the  ten- 
ant could  not  alien  in  any  case  without  the  lord's  concur- 


OTHER    FUTURE    INTERESTS.  367 

rence.  The  reversion  took  effect  in  possession  for  want  of 
an  heir,  unless  the  lord  had  done  or  permitted  what,  in  point 
of  law,  amounted  to  a  consent  to  a  new  investiture  or  change 
of  his  vassal.  This  is  the  meaning  of  the  distinction  taken 
in  the  books,  which  mention  that  nothing  escheats  where  the 
tenant  is  in  by  title.  Any  man  in  possession,  by  being  ten- 
ant to  the  lord,  could  not  strip  him  of  the  reversion.  Hence 
it  followed  that  the  land  returned  in  the  state  in  which  it 
was  granted  free  from  incumbrances. 

As  soon  as  a  liberty  of  alienation  was  allowed  without  the 
lord's  consent,  this  right  changed  its  name.  It  became  a 
sort  of  caducary  succession.  Thence  the  lord  was  called 
tanquam  haeres;  Craig,  L.  2,  c.  2,  s.  12-15.  Lord  takes  as 
ultimus  haeres,  &c.  The  resemblance  of  the  lord's  right  by 
escheat  to  the  heir's  by  descent  does  not  hold  throughout; 
and  therefore  the  lord  by  escheat  is,  in  Co.  Lift.  215,  b,  with 
accuracy  considered  as  assign  in  law.  He  took  no  possi- 
bility, or  condition,  or  right  of  action,  which  could  not  be 
granted.  He  could  not  elect  to  avoid  voidable  acts,  as  feoff- 
ment  of  an  infant  with  livery.  But  every  right  preserved  to 
the  heirs  which  could  be  granted  goes  to  the  lord  by  escheat. 
As  if  tenant  makes  lease  for  life,  reserving  rent  to  him  and 
his  heirs,  the  rent  will  go  to  the  lord  as  well  as  the  inher- 
itance.— Per  Lord  Mansfield,  in  Burgess  v.  IV heat e  (1759)- 

2  POLL.  &  MAIT.,  HIST.  ENG.  LAW,  22.  If  an  estate  in 
"fee  conditional"  came  to  an  end,  then  the  land  would  go 
back  to  the  donor.  We  have  seen  that  the  king's  court  did 
something  towards  making  this  an  uncommon  event,  for  the 
tenant,  so  soon  as  issue  of  the  prescribed  class  had  been 
born  to  him,  might  if  he  pleased  defeat  the  donor's  claim  by 
an  alienation.  Still,  even  when  this  rule  had  been  estab- 
lished, such  an  estate  would  sometimes  expire  and  then  the 
land  would  return  to  the  donor;  it  would  "revert"  or 
"escheat"  to  the  donor  and  lord.  Now,  in  later  days,  when 
the  great  statutes  of  Edward  I.  had  stopped  subinfeudation 
and  defined  the  nature  of  an  estate  tail,  no  blunder  could  have 


368   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

been  worse  than  that  of  confusing  a  reversion  with  an 
escheat.  These  two  terms  had  undergone  specification: 
land  "escheated"  to  the  lord  propter  defectum  tenentis  when 
a  tenant  in  fee  simple  died  without  heirs,  and  the  lord  in 
this  case  could  hardly  ever  be  the  donor  from  whom  that 
tenant  acquired  his  estate;  while,  on  the  other  hand,  on  the 
death  of  a  tenant  for  life,  or  the  death  without  issue  of  a 
tenant  in  tail,  land  "reverted"  to  the  "donor  who  had  created 
that  tenant's  estate.  But  at  an  earlier  time  there  was  not 
this  striking  contrast.  In  the  common  case,  so  long  as  sub- 
infeudation  was  permissible,  the  tenant  in  "fee-simple  ab- 
solute," just  like  the  tenant  in  "fee  conditional,"  held  of  his 
donor.  If  the  heirs  of  the  one  or  the  heirs  of  the  body  of  the 
other  fail,  the  land  goes  back  to  one  who  is  both  lord  and 
giver.  The  two  cases  have  very  much  in  common,  and  the 
words  "revert"  and  "escheat"  are  sometimes  indiscrim- 
inately used  to  cover  both.  According  to  the  orthodoxy  of 
a  later  age,  what  the  donor  has  when  he  has  created  a  con- 
ditional fee  is  not  a  reversion  but  a  "possibility  of  reverter." 
Whether  the  lawyers  of  1285  had  come  in  sight  of  this  subtle 
distinction  we  may  doubt,  without  hinting  for  a  moment  that 
it  is  not  now-a-days  well  established.  .  .  . 

DIGBY,  HIST.  REAL  PROP.,  Ch.  X.,  §  3  (i).  If  in  the 
case  of  freehold  lands  there  is  a  total  failure  of  heirs  on 
the  death  of  the  tenant,  the  land  escheats  to  the  lord.  The 
theory  of  title  by  escheat  is  that  the  whole  property  in  the 
land  being,  as  has  been  said,  divided  between  the  lords 
(paramount  and  mesne)  and  the  tenant,  on  the  tenant  fail- 
ing to  have  any  heirs  to  whom  the  lands  can  descend,  there 
is  a  species  of  reversion  to  the  next  lord.  His  right  over  the 
land  becomes  as  it  were  enlarged  by  the  failure  of  the  ten- 
ants in  possession.  But  this  title  must  be  completed  by  en- 
try on  the  land,  or  otherwise  asserting  his  right. 

GRAY,  PERPETUITIES,  §  44.  The  effect  of  the  Statute 
Quia  Emptores  on  the  right  of  escheat  was,  of  course,  to 


OTHER    FUTURE    INTERESTS.  369 

give  that  right  to  the  grantor's  lord.  It  is  said  by  Lord 
Coke  that  "if  land  holden  of  /.  5*.  be  given  to  an  abbot  and 
his  successors,  in  this  case  if  the  abbot  and  all  the  convent 
die,  so  that  the  body  politique  is  dissolved,  the  donor  shall 
have  againe  this  land,  and  not  the  lord  by  escheat.  And  so 
if  land  be  given  in  fee-simple  to  a  deane  and  chapter,  or  to 
a  mayor  and  commonalty,  and  to  their  successors,  and  after 
such  body  politique  or  incorporate  is  dissolved,  the  donor 
shall  have  again  the  land,  and  not  the  lord  by  escheate." 
This  statement  has  been  often  repeated  as  law,  and  has 
proved  a  sore  stumbling-block  to  courts  and  writers  in  this 
country.  Being  unwilling  to  follow  it,  they  have  been  con- 
strained to  call  it  "obsolete"  or  "unsuited  to  our  institu- 
tions." 

§  50.  But  the  notions  which  Lord  Coke  imposed  upon 
his  brethren  did  not  always  long  survive  his  retirement.  In 
Johnson  \.  Norway  (1622)  arose  the  precise  question 
whether,  on  the  dissolution  of  a  corporation,  its  land  went  to 
the  donor  or  escheated  to  the  lord.  Hobart,  C.  J.,  said : 
"The  great  doubt  of  the  case  will  be  upon  the  barre  of  the 
defendant,  whether  by  the  death  of  the  abbot  and  the  monks 
the  land  escheat  to  the  lords  of  whom  that  was  holden,  or 
whether  that  shall  go  to  the  donors,  and  to  the  founders, 
and  he  thought  that  the  land  shall  escheat,  to  which  Winch 
seemed  to  agree."  The  report  adds  that  the  judges  said  they 
would  advise  of  the  case,  and  gave  order  to  argue  it  again ; 
but  Lord  Male's  MSS.  say  that  it  was  held  that  the  land 
escheated.  This  is  the  only  case  in  which  the  question  has 
been  decided. 

§  51.  But  although  Lord  Coke's  doctrine  rests  .solely 
on  a  dictum  of  a  judge  in  the  fifteenth  century,  and  is  con- 
trary to  the  only  decided  case,  it  has  often  been  referred  to 
as  law.  No  decision,  however,  has  ever  followed  it,  and  it 
is  probably  one  of  those  dccantata  which  when  carefully  ex- 
amined will  be  found  not  only  "odious  and  obsolete,"  but  in 
fact  to  have  never  been  law  at  all. 


B.  STATUTORY  OR  MODERN  ESTATES. 

/.  Legal  Estates. 

CHAPTER  I. 

EXECUTORY  USES. 

DIGBY,  HIST.  REAL  PROP.,  Ch.  VI.  (3).  Interests  in 
lands,  too,  might  be  created  by  way  qf  use  to  commence  and 
terminate  at  times  and  in  ways  which  the  doctrines  of  the 
common  law  would  not  permit.  It  has  already  been  seen 
that  where  one  person  desired  to  convey  lands  to  another  at 
common  law,  he  must  do  so  either  by  feoffment  with  livery 
of  seisin,  which  was  the  regular  mode  of  transfer,  or  by  the 
fictitious  processes  of  fine  or  recovery,  or  by  conveying  a 
particular  estate  by  lease  for  years  and  entry,  or  by  lease  for 
life  with  livery  of  seisin  followed  by  a  release  of  the  re- 
version to  the  lessee,  or  by  a  grant  of  the  reversion  to  a 
third  person,  in  which  latter  case  the  lessee  for  years  must 
attorn  to  the  grantee  of  the  reversion  in  order  to  give  com- 
plete effect  to  the  grant.  The  foundation  of  all  these  modes 
of  conveying  interests  in  lands  was  open  and  notorious 
transfer  of  possession ;  the  point  at  which  the  freehold  in- 
terest passed  out  of  the  grantor  and  vested  in  the  grantee 
was  marked  by  an  actual  change  of  possession  (unless  in- 
deed the  grantee  was  already  in  actual  possession),  or,  in 
the  case  of  a  fine  or  recovery,  by  an  acknowledgment  in 
open  court.  Thus  it  was  that  freehold  interests  to  take 
effect  in  possession  or  enjoyment  at  a  future  time  could  only 
be  created  by  way  of  remainder.  .  .  .  No  such  rule, 
however,  restricted  the  freedom  of  the  Chancellor  in  enforc- 


EXECUTORY    USES. 

ing  uses.  There  was  no  reason  why  the  intention  of  the 
donor  should  not  be  carried  into  effect  at  a  future  period. 
Thus  a  feoffment  to  A.  and  his  heirs,  and  after  next  Christ- 
mas to  the  use  of  B.  and  his  heirs,  would  be  carried  out 
according  to  the  expressed  intention  of  the  donor.  So  a 
use  might  be  raised  on  the  happening  of  any  future 
event,  or  the  expiration  of  any  specified  time.  Thus,  while 
at  common  law,  as  has  been  pointed  out,  a  fee  could  not 
be  limited  after  a  fee,  this  might  in  effect  be  done  with, 
the  use.  A  conveyance  to  A.  and  his  heirs  so  long  as 
he  continued  unmarried,  and  upon  his  marriage  to  the 
use  of  B.  and  his  heirs,  would  cause  the  use  upon  the  hap- 
pening of  the  event  to  arise  and  spring  up  and  vest  in  B.~ 
in  other  words,  A.,  upon  his  marriage,  while  remaining; 
legal  owner,  would  be  constrained  by  the  Chancellor  to  hold 
to  the  use  of  B.  Thus  a  power  was  acquired  of  creating; 
future  interests  in  lands  and  of  causing  interests  in  lands  to 
be  shifted  and  to  pass  from  one  person  to  another,  which 
was  unknown  to  the  common  law,  and  which  gave  rise  to  the 
complicated  system  of  conveyancing  which  prevails  at  the 
present  day. 

ID.,  Ch.  VII.,  §  2.  It  has  been  shown  .  .  .  that  before 
the  Statute  the  Chancellor  was  in  the  habit  of  enforcing; 
uses  created  so  as  to  arise  at  a  future  time.  Such  limita- 
tions now  became  effectual  also  at  law,  and  conveyances; 
were  thus  enabled  to  introduce  limitations  of  much  greater 
complication,  in  dealing  with  the  legal  estate,  than  was  pos- 
sible at  common  law. 

The  above  instances  may  suffice  to  suggest  a  distinction 
which  is  usually  made  between  what  are  called  (i)  shift- 
ing uses,  (2)  springing  uses,  (3)  future  or  contingent- 
uses,  or,  more  properly,  uses  limited  to  take  effect  as  re- 
mainders. 

The  distinction  between  the  first  two  of  the  above  classes 
has  in  the  history  of  the  law  been  of  less  importance  than 
the  distinction  between  those  two  classes  and  the  third. 


37^   READINGS  IX  THE  LAW  OF  REAL  PROPERTY. 

A  shifting  use  is  where  a  use  has  been  properly  created, 
and  then  upon  the  happening  of  some  specified  event  the 
interest  first  created  passes  away  from  the  person  enjoying 
it,  and  vests,  partially  or  wholly,  in  some  other  person.  For 
instance,  if  lands  are  given  to  A.  and  his  heirs  to  the  use  of 
B.  and  his  heirs,  but  if  B.  die  in  the  lifetime  of  A.  then  to 
the  use  of  C.  and  his  heirs.  Upon  the  death  of  B.  in  A.'s 
lifetime  the  use  is  said  to  shift  to  C.  Again,  a  provision  is 
often  made  by  way  of  the  creation  of  a  shifting  use  for  an 
estate  shifting  away  from  the  person  to  whom  it  is  first 
given  to  some  other  member  of  the  family  on  the  acquisition 
of  some  other  estate.  Thus  by  the  aid  of  shifting  uses  the 
old  rules  as  to  the  creation  of,  future  estates  by  way  of  re- 
mainder may  be  evaded,  a  future  freehold  interest  can  since 
the  Statute  be  created  by  way  of  shifting  use  to  take  effect 
without  waiting  for  the  determination  of  a  particular  estate, 
and  an  estate  in  fee  simple  can  by  the  same  method  be 
1  made  to  pass  from  one  person  to  another.  Nor  can  any 
alienation  or  disposition  of  the  lands  by  the  first  cestui  que 
use  affect  the  interest  of  the  person  who,  upon  the  happen- 
ing of  the  specified  contingency,  is  entitled  to  the  use  of  the 
lands. 

Springing  uses  differ  from  shifting  uses  merely  in  the 
fact  of  their  arising  by  virtue  of  the  mode  of  their  creation 
as  new  uses,  and  not  operating  by  way  of  shifting  of  a  use 
already  created  from  one  person  to  another.1 

******* 

1  Examples  of  springing  uses  occur — upon  a  bargain  and  sale  to 
another  after  seven  years,  or  after  the  death  of  the  bargainer,  or  upon 
any  other  specified  future  event.  Also  upon  a  covenant  to  stand  seised 
to  the  use  of  another,  after  the  covenantor's-death,  or  to  the  use  of  the  heirs 
or  heirs  of  the  body  of  another  after  his  death.  So  upon  a  conveyance 
operating  to  transfer  the  legal  estate,  with  a  declaration  of  the  use  to  A. 
and  his  heirs  after  four  years,  or  after  the  death  of  the  grantor,  or  to  the 
use  of  the  heirs  of  A.,  after  the  death  of  A.,  such  uses  are  good  springing 
uses.  But  though  the  uses  are  deferred,  the  conveyance  of  the  seisin  to 
serve  the  uses  must  be  immediate,  because  a  freehold  cannot  be  con- 
veyed in  ftituro  by  any  mode  of  conveyance  operating  only  at  common 
law. — Leake,  Land  Law,  350. 


EXECUTORY    USES.  373 

Future  or  contingent  uses,  or,  as  they  might  be  called, 
uses  limited  as  remainders,  present  somewhat  different 
features,  though  the  importance  of  the  distinction  is  much 
diminished  by  the  recent  Act  40  and  41  Viet.,  c.  33.  By  a 
series  of  decisions  a  rule  was  established  that  if  a  limitation 
could  be  regarded  as  a  remainder  it  should  not  be  regarded 
as  a  springing  or  shifting  use.  Nor  was  this  rule  affected 
by  the  consideration  that  the  use  might  be  void  if  the  strin- 
gent requirements  which  the  common  law  demanded  in  the 
case  of  contingent  remainders  were  not  complied  with. 
Thus,  if  it  unfortunately  happened  that  the  conveyancer,  in 
drawing  the  deed,  expressed  the  conditions  on  which  the 
future  use  was  to  arise  in  such  a  way  that  the  future  estate 
could  be  construed  as  a  remainder,  and  if,  at  the  same  time, 
such  remainder  was  contrary  to  the  old  common  law  rules 
affecting  remainders,  which  had  long  ceased  to  be  founded 
on  any  substantial  reason,  the  future  interest  was  invalid  in 
consequence  of  this  defect  in  point  of  law.  For  instance,  if 
a  conveyance  was  made  to  B.  and  his  heirs  to  the  use  of  A. 
for  10  years,  remainder  to  the  use  of  the  heirs  of  /.  S.,  the 
remainder  was  void,  being  a  contingent  remainder  limited 
upon  an  estate  for  years.  The  fact  that  if  the  limitation 
did  not  happen  to  fall  within  the  definition  of  a  remainder,  it 
might  be  good  as  a  springing  use,  was  utterly  disregarded. 
Perhaps  in  no  point  was  the  extreme  technicality  of  the 
rules  relating  to  uses  more  conspicuous.  A  partial  remedy 
for  this  injustice  in  the  case  of  contingent  remainders 
created  by  instruments  executed  after  August  2,  1877,  has 
been  provided  by  the  Statute  40  and  41  Viet.,  c.  33,  by  which 
it  is  provided  that  every  contingent  remainder  ...  in 
tenements  or  hereditaments  of  any  tenure  which  would  have 
been  valid  as  a  springing  or  shifting  use  or  executory  de- 
vise or  other  limitation  had  it  not  had  a  sufficient  estate  to 
support  it  as  a  contingent  remainder,  shall,  in  the  event  of 
the  particular  estate  determining  before  the  contingent  re- 
mainder vests,  be  capable  of  taking  effect  in  all  respects  as  if 
the  contingent  remainder  had  originally  been  created  as  a 


374   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

springing  or  shifting  use  or  executory  devise  or  other  ex- 
ecutory limitation. 

Sue.  GILB.  USES,  176.  The  result  of  the  authorities 
•seems  to  be  that  to  create  a  good  springing  use  it  must  be 
limited  at  Once  independently  of  any  preceding  estate,  and 
not  by  way  of  remainder,  for,  if  it  be,  it  shall  be  construed  a 
•contingent,  and  not  a  springing  use,  and  shall  be  subject 
to  the  laws  which  govern  contingent  remainders.  By  a 
train  of  decisions  springing  uses  are  thus  confined  within 
very  narrow  limits,  and  future  or  contingent  uses  are  placed 
•on  exactly  the  same  footing  with  contingent  remainders. — 
Sugden's  note. 

GRAY,  PERPETUITIES,  §  58.  Is  a  Contingent  Use  good 
although  preceded  by  an  Estate  for  Years?  In  two  cases, 
Adams  v.  Savage1  (1703),  and  Rowley  v.  Holland2  (1712), 
it  was  held  that  a  use  limited  after  an  estate  for  years  to  a 
person  not  in  esse,  was  bad  as  a  contingent  remainder  un- 
supported by  a  freehold. 

§  59.  The  soundness  of  these  two  decisions  is  very  ques- 
tionable. It  is  well  settled  that  if  a  future  limitation  can  be 
construed  as  a  remainder  it  must  be  so  construed,  and  not 
as  a  springing  use ;  but  it  is  a  very  different  thing  to  say 
that  a  good  springing  use  must  be  construed  into  a  bad  re- 
mainder, because  it  is  preceded  by  an  estate  which  is  insuffi- 
cient to  support  a  remainder.  To  construe  a  limitation  as  a 
remainder,  if  it  can  be  a  remainder,  is  one  thing;  but  to  in- 
sist upon  construing  it  as  a  remainder,  when  it  cannot  be  a 
remainder,  seems  the  very  wantonness  of  destruction.  In 
fact,  an  estate  after  an  estate  for  years,  though  commonly 
•called  a  remainder,  is  not  strictly  so ;  a  remainder  is  an 
estate  after  a  freehold ;  a  remainder-man,  so  called,  after  an 
•estate  for  years,  has  the  present  seisin,  and  the  reason  why 
at  common  law  an  estate  cannot  be  given  to  a  person  not 

1  2  Ld.  Raym.  854  ;  2  Salk.  679. 

*  22  Vin.  Ab.  189  ;  2  Eq.  Cas.  Ab.  753. 


EXECUTORY    USES.  375 

in  esse  after  an  estate  for  years  is,  that  there  is  no  one  to 
take  the  present  seisin,  and  that  a  freehold  cannot  be 
granted  in  future.  But,  by  way  of  use,  a  freehold  can  be 
granted  in  futuro. 

§  60.  The  cases  of  Adams  v.  Savage  and  Rawley  v.  Hol- 
land have,  accordingly,  been  much  criticised.  But,  further, 
they  must  be  considered  as  overruled  by  cases  in  which  it 
has  been  repeatedly  held  that  a  future  contingent  devise 
after  an  estate  for  years  is  a  good  executory  devise,  and  not 
a  bad  remainder.1  There  is  no  intelligible  distinction  in  this 
respect  between  springing  uses  and  springing  executory  de- 
vises, and  if  Adams  v.  Savage  and  Rawley  v.  Holland  have 
not  been  formally  overruled,  it  is  in  all  probability  because 
the  question  has  not  arisen  under  a  deed,  as  it  has  under 
wills.  The  statement  may  therefore  be  ventured  that  a  con- 
tingent use  is  good  although  preceded  by  an  estate  for  years. 

1  Gore  v.  Gore,  2  P.  Wms.  28  (1722). 


CHAPTER  II. 

EXECUTORY  DEVISES. 

2  BL.  COM.,  172-175.    An  executory  devisq  of  lands  is 

such  a  disposition  of  them  by  will  that  thereby  no  estate 
vests  at  the  death  of  the  devisor,  but  only  on  some  future 
contingency.  It  differs  from  a  remainder  in  three  very  ma- 
terial points:  i.  That  it  needs  not  any  particular  estate  to 
support  it.  2.  That  by  it  a  fee-simple,  or  other  less  estate, 
may  be  limited  after  a  fee-simple.  3.  That  by  this  means  a 
remainder  may  be  limited  of  a  chattel  interest,  after  a  par- 
ticular estate  for  life  created  in  the  same. 

i.  The  first  case  happens  when  a  man  devises  a  future 
estate  to  arise  upon  a  contingency ;  and,  till  that  contingency 
happens,  does  not  dispose  of  the  fee-simple,  but  leaves  it  to 
descend  to  his  heirs  at  law.  As  if  one  devises  land  to  a 
feme-sole  and  her  heirs,  upon  her  day  of  marriage :  here  is 
in  effect  a  contingent  remainder,  without  any  particular 
estate  to  support  it ;  a  freehold  commencing  in  future.  This 
limitation,  though  it  would  'be  void  in  a  deed,  yet  is  good  in 
a  will,  by  way  of  executory  devise.  For,  since  by  a  devise  a 
freehold  may  pass  without  corporal  tradition  or  livery  of 
seisin  (as  it  must  do,  if  it  passes  at  all),  therefore  it  may 
commence  in  futuro;  because  the  principal  reason  why  it 
cannot  commence  in  futuro  in  other  cases,  is  the  necessity  of 
actual  seisin,  which  always  operates  in  praesenti.  And, 
since  it  may  thus  commence  in  futuro,  there  is  no  need  of  a 
particular  estate  to  support  it;  the  only  use  of  which  is  to 
make  the  remainder,  by  its  unity  with  the  particular  estate, 
a  present  interest.  And  hence  also  it  follows  that  such  an 
executory  devise,  not  being  a  present  interest,  cannot  be 
barred  by  a  recovery,  suffered  before  it  commences. 


EXECUTORY    DEVISES.  377 

2.  By  executory  devise,  a  fee,  or  other  less  estate,  may  be 
limited  after  a  fee.    And  this  happens  where  a  devisor  de- 
vises his  whole  estate  in  fee,  but  limits  a  remainder  thereon 
to  commence  on  a  future  contingency.    As  if  a  man  devises 
land  to  A.  and  his  heirs ;  but  if  he  dies  before  the  age  of  , 
twenty-one,  then  to  B.  and  his  heirs ;  this  remainder,  though 
void  in  deed,  is  good  by  way  of  executory  devise.     But,  in 
both  these  species  of  executory  devises,  the  contingencies 
ought  to  be  such  as  may  happen  within  a  reasonable  time ; 
as  within  one  or  more  life  or  lives  in  being,  or  within  a  mod- 
erate term  of  years,  for  courts  of  justice  will  not  indulge 
even  wills,  so  as  to  create  a  perpetuity,  which  the  law  ab- 
hors:  because  by  perpetuities  (or  the  settlement  of  an  inter- 
est, which  shall  go  in  the  succession  prescribed,  without  any 
power  of  alienation),  estates  are  made  incapable  of  answer- 
ing tkose  ends  of  social  commerce,  and  providing  for  the 
sudden  contingencies  of  private  life,  for  which  property 
was  at  first  established.     The  utmost  length  that  has  been 
hitherto  allowed  for  the  contingency  of  an  executory  devise 
of  either  kind  to  happen  in,  is  that  of  a  life  or  lives  in  being, 
and  one  and  twenty  years  afterwards.     As  when  lands  are 
devised  to  such  unborn  son  of  a  feme-covert,  as  shall  first 
attain  the  age  of  twenty-one,  and  his  heirs;  the  utmost 
length  of  time  that  can  happen  before  the  estate  can  vest  is 
the  life  of  the  mother  and  the  subsequent  infancy  of  her 
son :  and  this  hath  been  decreed  to  be  a  good  executory  de- 
vise. 

3.  By  executory  devise,  a  term  of  years  may  be  given  to 
one  man  for  his  life,  and  afterwards  limited  over  in  re- 
mainder to  another,  which  could  not  be  done  by  deed ;  for 
by  law  the  first  grant  of  it,  to  a  man  for  life,  was  a  total  dis- 
position of  the  whole  term ;  a  life-estate  being  esteemed  of  a 
higher  and  larger  nature  than  any  term  of  years.    And,  at 
first,  the  courts  were  tender,  even  in  the  case  of  a  will,  of 
restraining  the  devisee  for  life  from  aliening  the  term ;  but 
only  held,  that  in  case  he  died  without  exerting  that  act  of 
ownership,  the  remainder  over  should  then  take  place:  for 


3/8   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

the  restraint  of  the  power  of  alienation,  especially  in  very 
long  terms,  was  introducing  a  species  of  perpetuity.  But, 
soon  afterwards  it  was  held  that  the  devisee  for  life  hath  no 
power  of  aliening  the  term,  so  as  to  bar  the  remainderman : 
yet,  in  order  to  prevent  the  danger  of  perpetuities,  it  was 
settled  that  though  such  remainders  may  be  limited  to  as 
many  persons  successively  as  the  devisor  thinks  proper,  yet 
they  must  all  be  in  esse  during  the  life  of  the  first  devisee ; 
for  then  all  the  candles  are  lighted  and  are  consuming  to- 
gether, and  the  ultimate  remainder  is  in  reality  only  to  that 
remainderman  who  happens  to  survive  the  rest :  and  it  was 
also  settled,  that  such  remainder  may  not  be  limited  to  take 
effect,  unless  upon  such  contingency  as  must  happen  (if  at 
all)  during  the  life  of  the  first  devisee. 

ID.,  175.  A  future  estate  will  always  be  construed  to  be 
a  remainder  when  it  can  be,  in  preference  to  a  springing  use 
or  executory  devise.  The  reason  is  an  obvious  one :  in  the 
latter  case  the  future  estate  cannot  be  barred,  and  the  land 
is  completely  withdrawn  from  commerce.  So  between  re- 
mainders the  law  favors  their  vesting,  because  that  com- 
bines the  interests  of  a  free  commerce  in  land  with  the 
rights  of  the  proprietors.  .  .  .  It  is  an  inflexible  rule  that 
no  limitation  shall  be  deemed  an  executory  devise  if  it  may 
by  any  practicable  construction  be  sustained  as  a  contingent 
remainder :  for  the  all-sufficient  reason  that  these  executory 
devises,  being  inconsistent  with  the  policy  of  the  common 
law,  which,  on  account  of  its  abhorrence  of  estates  com- 
mencing in  future,  requires  all  the  precedent  parts  of  the 
fee  to  pass  out  of  the  grantor  at  the  same  instant,  are  barely 
tolerated,  and  only  in  favour  of  the  explicit  declaration  of 
one  who  may  have  been  compelled  to  dispose  of  his  estates 
when  unassisted  by  counsel.  They  are,  therefore,  to  be  sus- 
tained only  in  cases  of  clear  necessity. — Sharswood's  note. 

FEARNE,  REM.,  382-386.  An  executory  devise  is  defined 
to  be  a  devise  of  a  future  interest  in  lands,  not  to  take  effect 
at  the  testator's  death,  but  limited  to  arise  and  vest  upon 


EXECUTORY    DEVISES.  379 

some  future  contingency.  This  is  the  definition  commonly 
given  of  an  executory  devise.  It  comprehends  indeed  every 
species  of  an  executory  devise ;  but  at  the  same  time  it  is  not 
confined  to  executory  devises  only ;  it  includes  every  kind  of 
contingent  interest  in  lands  given  by  devise  (for  every  con- 
tingent interest  must  necessarily  be  future)  ;  now  every 
contingent  interest  in  lands  limited  by  devise  is  not  an  ex- 
ecutory devise,  for  some  contingent  interests  by  devise  are 
contingent  remainders ;  therefore,  such  a  definition  must  be 
considered  as  defective  in  point  of  precision  and  accuracy. 
An  executory  devise  is,  strictly,  such  a  limitation  of  a  future 
estate  or  interest  in  lands  or  chattels  as  the  law  admits,  in 
the  case  of  a  will,  though  contrary  to  the  rules  of  limitation 
in  conveyances  at  common  law.  It  is  only  an  indulgence 
allowed  to  a  man's  last  will  and  testament,  where  otherwise 
the  words  of  the  will  would  be  void ;  for  wherever  a  future 
interest  is  so  limited  by  devise  as  to  fall  within  the  rules 
above  laid  down  for  the  limitation  of  contingent  remainders, 
such  an  interest  is  not  an  executory  devise,  but  a  contingent 
remainder. 

LEAKE,  LAND  LAW,  68.  A  disposition  by  will,  equally 
with  a  disposition  by  deed,  is  subject  to  the  general  rules  of 
the  common  law  regulating  the  estates  or  interests  which 
may  be  given.  A  testator  can  only  devise  such  estates  as  are 
known  to  the  law,  nor  can  he  alter  or  take  away  the  legal 
incidents  and  qualities  of  such  estates ;  for  instance,  he  can- 
not render  estates  of  inheritance  inalienable,  nor  alter  the 
law  of  inheritance. 

But  the  power  of  disposition  by  will,  being  derived  di- 
rectly from  the  statute,  is  for  the  most  part  independent  of 
the  restrictions  imposed  by  the  peculiar  feudal  doctrines  of 
the  common  law,  and  by  the  common  law  forms  of  convey- 
ance. Devises  of  freehold  estates  were  operative  without 
livery  of  seisin,  and  without  attornment,  before  these  for- 
malities were  dispensed  with  by  statute.  Devises  of  free- 
hold estates  may  be  made  to  take  effect  in  futuro,  at  a  fu- 


380   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

ture  date  or  upon  any  specified  event,  leaving  the  inher- 
itance in  the  meantime  to  descend  to  the  heir;  or  such  de- 
vises may  be  made  to  take  effect  in  defeasance  of  and  in  sub- 
stitution for  preceding  devises ;  although  such  limitations  of 
estates  are  contrary  to  the  rules  of  the  common  law,  which 
admit  no  future  limitations  or  substitutions  of  the  tenancy, 
except  by  way  of  remainders.  These  future  devises  are 
analogous  to  the  springing  and  shifting  uses  which  became 
legal  limitations  under  the  Statute  of  Uses,  and  they  are 
called  distinctively  executory  devises. 

ID.,  360.  An  executory  devise  being  the  limitation  by 
will  of  a  future  estate  or  interest  in  land,  which  cannot  take 
effect  as  a  remainder,  it  follows  that  "every  devise  of  a  fu- 
ture interest  which  is  not  preceded  by  an  estate  of  freehold 
created  by  the  same  will,  or  which,  being  so  preceded,  is  lim- 
ited to  take  effect  before  or  after  and  not  at  the  expiration  of 
such  prior  estate  of  freehold  is  an  executory  devise."1 
1 1  Jarman  on  Wills,  778. 


CHAPTER  III. 
STATUTORY  FUTURE  ESTATES. 

4  KENT  COM.,  271.  The  New  York  statute  has,  in  effect, 
destroyed  all  distinction  between  contingent  remain- 
ders and  executory  devises.  They  are  equally  future  or 
expectant  estates,  subject  to  the  same  provisions,  and  may 
be  equally  created  by  grant  or  by  will.  The  statute1  allows 
a  freehold  estate,  as  well  as  a  chattel  real,  to  be  created  to 
commence  at  a  future  day;  and  an  estate  for  life  to  be 
created  in  a  term  for  years,  and  a  remainder  limited  thereon ; 
and  a  remainder  of  a  freehold  or  chattel  real,  either  con- 
tingent or  vested,  to  be  created  expectant  on  the  determina- 
tion of  a  term  for  years ;  and  a  fee  to  be  limited  on  a  fee, 
upon  a  contingency.  There  does  not  appear,  therefore,  to 
be  any  real  distinction  left  subsisting,  between  contingent 
remainders  and  executory  devises.  They  are  so  perfectly 
assimilated,  that  the  latter  may  be  considered  as  reduced 
substantially  to  the  same  class;  and  they  both  come  under 
the  general  denomination  of  expectant  estates.  Every 
species  of  future  limitation  is  brought  within  the  same  defini- 
tion and  control.  Uses  being  also  abolished  by  the  same 
code,2  all  expectant  estates,  in  the  shape  of  springing,  shift- 
ing, or  secondary  uses,  created  by  conveyances  to  uses,  are, 
in  effect,  become  contingent  remainders,  and  subject  pre- 
cisely to  the  same  rules. 

GRAY,  PERPETUITIES,  §  67.  In  several  of  the  United 
States  freehold  estates  may  be  created  in  futuro  either  by 
express  provision  of  statute  or  by  inference  from  statutes 

1  New  York  Revised  Statutes,  Vol.  I.,  724,  sec.  24. 
*  Ibid.,  Vol.  I.,  727,  sec.  45. 


382   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

dispensing  with  the  necessity  of  livery  of  seisin.  And  al- 
though in  several  of  the  States  (e.g.,  New  York,  Michigan, 
and  Wisconsin)  uses  have  been  abolished,  which  of  itself 
would  greatly  limit  the  creation  of  estates  in  futuro,  yet 
wherever  this  has  been  done  it  is  believed  that  freehold 
estates  can,  by  statute,  be  created  in  futuro  so  that  the 
abolition  of  uses  occasions  no  practical  inconvenience. 

§  68.  The  only  possible  exception  to  this  is  Ohio.  The 
Statute  of  Uses  is  not  in  force  in  that  State,  and  it  has  never 
been  expressly  enacted  that  freeholds  can  be  created  in 
futuro.  But  land  passes  there  by  deed  without  livery  of- 
seisin,  and  the  courts  of  Ohio  will  not  improbably  hold,  as 
have  those  of  Maine  and  Vermont,  that  when  livery  of  seisin 
is  no  longer  necessary  the  objection  to  the  creation  of  a 
freehold  in  futuro  fails  with  it. 

N.  Y.  REAL  PROP.  LAW,  §  40.  Subject  to  the  provisions 
of  this  article,  a  freehold  estate  as  well  as  a  chattel  real  may 
be  created  to  commence  at  a  future  day;  an  estate  for  life 
may  be  created  in  a  term  of  years,  and  a  remainder  limited 
thereon ;  a  remainder  of  a  freehold  or  chattel  real,  either 
contingent  or  vested,  may  be  created  expectant  on  the  deter- 
mination of  a  term  of  years;  and  a  fee  or  other  less  estate 
may  be  limited  on  a  fee,  on  a  contingency  which,  if  it  should 
occur,  must  happen  within  the  period  prescribed  in  this 
article. 

§  43.  A  remainder  may  be  limited  on  a  contingency, 
which,  if  it  happens,  will  operate  to  abridge  or  determine 
the  precedent  estate;  and  every  such  remainder  shall  be  a 
conditional  limitation. 


CHAPTER  IV. 

POWERS. 

Co.  LIT.,  237,  a.  Lastly,  somewhat  were  necessarie  to  be 
spoken  concerning  clauses  of  provisoes,  containing  power  of 
revocation,  which  since  Littleton  wrote  are  crept  into  volun- 
tarie  conveyances,  which  passe  by  raising  of  uses,  being 
executed  by  the  statute  of  27  H.  8  and  are  become  verie 
frequent,  and  the  inheritance  of  many  depend  thereupon. 
As  if  a  man  ceised  of  lands  in  fee,  and  having  issue  divers 
sonnes,  by  deed  indented,  covenanteth  in  consideration  of 
fatherly  love,  and  for  the  advancement  of  the  blood,  or  upon 
any  other  good  consideration,  to  stand  seised  of  three  acres 
of  land  to  the  use  of  himselfe  for  life,  and  after  to  the  use 
of  Thomas  his  eldest  son  in  taile ;  and  for  default  of  such 
issue,  to  the  use  of  his  second  son  in  taile,  with  divers  like 
remainders  over;  with  a  proviso  that  it  shall  be  lawfull  for 
the  covenantor  at  any  time  during  his  life  to  revoke  any 
of  the  said  uses,  &c. :  this  proviso  being  coupled  with  an 
use,  is  allowed  to  be  good,  and  not  repugnant  to  the  former 
states.  But  in  case  of  a  feoffment,  or  other  conveyance, 
whereby  the  foeffee  or  grantee,  &c.,  is  in  by  the  common  law, 
such  a  proviso  were  merely  repugnant  and  void.  .  .  . 

By  the  same  conveyance  that  the  old  uses  be  revoked,  may 
new  be  created  or  limited,  where  the  former  cease  ipso  facto 
by  the  revocation,  without  either  entrie  or  claime. 

SUGD.  Pow.,  ii.  Powers  before  the  Statute  of  Uses  were, 
as  we  have  seen,  mere  directions  to  the  trustee  of  the  legal 
estate  how  to  convey  the  estate;  in  truth  they  were  future 
uses  to  be  designated  by  the  person  to  whom  the  power  was 
given :  these,  when  they  arose,  equity  compelled  the  trustee 


384   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

to  observe ;  and  when  conveyances  under  the  Statute  of  Uses 
became  established,  it  was  still  usual  to  reserve  or  limit  such 
powers,  as  the  exigencies  of  the  case  required :  thus,  powers 
to  lease,  to  sell,  or  exchange,  to  jointure,  to  charge  with  por- 
tions for  younger  children,  or  to  revoke  the  settlement  itself, 
soon  became  usual.  .  .  . 

DIGBY,  HIST.  REAL  PROP.,  Ch.  VII.,  §  2.  One  of  the 
commonest  modes  of  calling  into  operation  the  Statute  of 
Uses  is  by  the  creation  of  what  are  called  powers  of  appoint- 
ment, that  is,  conferring  on  a  person  a  power  of  disposing  of 
an  interest  in  lands  quite  irrespective  of  the  fact  whether 
or  not  he  has  any  interest  in  the  land  himself.  The  creator 
or  donor  of  the  power  in  disposing  of  the  lands  makes  a 
conveyance  operative  at  common  law,  and  at  the  same  time 
declares  that  such  and  such  uses  are  to  arise  on  the  execution 
of  a  proper  instrument  by  a  designated  person.  This  is 
called  technically  giving  to  a  person  a  power  of  appointment, 
and  the  instrument  when  executed  operates  as  an  appoint- 
ment. The  estate  which  passes  under  the  power  of  appoint- 
ment comes  not  from  the  donee  of  the  power,  but  from  the 
original  settlor;  the  only  difference  between  an  interest 
thus  created  and  an  immediate  conveyance  being,  that  in- 
stead of  the  uses  being  declared  by  the  original  settlor  at 
the  time  of  the  conveyance  of  the  legal  estate,  it  is  left  to 
a  third  person  to  declare  them. 

Thus  it  was  common  in  ordinary  purchase  deeds  of  land, 
where  the  purchaser  was  married  before  Jan.  I,  I834,1  to 
introduce  provisions  of  this  kind  in  order  to  bar  effectually 
any  claim  to  dower  on  the  part  of  his  widow.  No  estate  of 
inheritance  in  possession  was  given  to  the  purchaser  at  all, 
but  he  was  invested  with  a  power  of  disposing  of  the  lands 
for  any  estate.  This  was  effected  by  conveying  the  lands  to 
A.  and  his  heirs  to  such  uses,  etc.,  as  B.  (the  purchaser) 
should  appoint,  and  in  default  of  and  until  appointment  to 

1  When  the  Dower  Act  (3  &  4  Will.  I V.,  c.  105)  came  into  operation,  by 
which  a  simpler  method  of  barring  dower  was  introduced. 


POWERS.  385 

the  use  of  B.  for  life,  remainder  to  the  use  of  A.  and  his 
heirs  during  the  life  of  B.,  remainder  to  the  use  of  B.  and 
his  heirs.  Under  these  limitations  B.  never  had  more  than 
an  estate  for  life  in  possession,  and  therefore  his  widow's 
dower  could  not  attach.  At  the  same  time,  by  exercising 
the  power  of  appointment  he  could  in  effect  convey  an  estate 
in  fee  simple  to  any  other  person. 

HARDRES,  415.  Powers  to  raise  estates  are  either  simply 
collateral  (as  where  a  party  that  has  such  power  has  not, 
nor  ever  had  any  estate  in  the  land :  as  where  such  power 
is  reserved  to  a  stranger,  and  there  it  cannot  be  destroyed 
by  such  stranger,  because  it  is  no  more  than  a  bare 
nomination)  or  not  simply  collateral:  and  these  latter  are 
of  two  sorts :  first,  appendant  and  annexed  to  the  estate ; 
secondly,  in  gross.  A  power  of  the  first  sort  is,  where  tenant 
for  life  has  a  power  to  make  leases  for  one  and  twenty  years 
or  three  lives :  such  a  power  is  not  simply  collateral.  For  if 
such  a  tenant  charge  the  land  with  a  rent,  and  then  execute 
his  power,  the  charge  shall  not  be  defeated  whilst  he  lives. 
Latche's  Rep.  So  if  he  had  before  covenanted  to  stand 
seised  to  the  use  of  another ;  because  the  power  in  that  case 
is  annexed  to  the  estate.  But  where  the  power  does  not  fall 
within  the  estate,  as  here  the  tenant  for  life  has  a  power  to 
make  an  estate,  which  is  not  to  begin  till  after  his  own 
estate  determined,  such  power  is  not  appendant  or  annexed 
to  the  land,  but  is  a  power  in  gross ;  because  the  estate  for 
life  has  no  concern  in  it.  And  yet  such  a  power  may  by  apt 
words  be  destroyed  by  release,  or  by  a  fine  or  feoffment, 
which  carry  away  and  include  all  things  relating  to  the  land. 
But  an  assignment  of  totum  statum  suum,  or  other 
alteration  of  the  estate  for  life,  does  not  affect  such  a  power, 
because  it  is  a  power  in  gross. — Per  Hale,  C.  B.,  in  Edwards 
v.  Sleater  (1666). 

Co.  LIT.,  271,  b.  By  a  general  power  of  appointment  is 
understood  that  kind  of  power  which  enables  the  party  to 


386   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

appoint  the  estate  to  any  persons  he  thinks  proper ;  and,  in 
this  sense,  it  is  opposed  to  a  qualified  or  particular  power, 
which  enables  the  party  to  appoint  to  or  among  particular 
objects  only;  as  a  power  of  appointing  to  his  children,  or 
the  children  of  any  other  person.  A  general  power  of  ap- 
pointment has  no  tendency  to  a  perpetuity,  as,  from  its  very 
nature,  it  enables  the  party  to  vest  the  whole  fee  in  himself, 
or  in  any  other  person,  and  to  liberate  the  estate  entirely 
from  every  species  of  limitation  inconsistent  with  that  fee. 
In  fact  therefore  giving  a  person  such  a  power  is  nearly  the 
same  as  giving  him  the  absolute  fee.  The  only  difference 
is,  that  it  enables  him  to  do,  through  the  medium  of  a  seisin 
previously  created,  that  which,  if  the  fee  had  been  actually 
limited  to  him,  he  might  do  by  a  conveyance  of  the  land 
itself;  so  that  in  both  cases  his  power  of  alienation  is  of  the 
same  extent.  But,  in  the  case  of  a  particular  or  qualified 
power,  where  the  objects  are  limited,  the  case  is  entirely 
different.  The  limitation  of  the  objects  takes  the  land  out 
of  commerce,  and  of  course  has  a  tendency  to  that  perpetu- 
ity which  the  English  law  of  real  property  does  not  admit. 
The  consequence  therefore  is,  and  by  a  series  of  cases  it  now 
appears  to  be  settled,  that  where  the  power  is  general,  estates 
for  life,  with  remainders  over,  may  be  limited  under  them 
to  persons  not  in  esse  at  the  time  of  the  execution  of  the 
original  deed,  in  the  same  manner,  and  to  the  same  extent, 
as  if,  instead  of  being  derived  out  of  the  seisin  of  the  feoffees 
of  the  original  deed,  and  in  that  point  of  view  as  making 
a  part  of  that  deed,  the  uses  and  estates  so  limited  were 
created  by  an  original,  substantive,  independent,  and  inte- 
gral conveyance.  On  the  other  hand,  in  the  case  of  a  par- 
ticular or  qualified  power,  that  is,  where  the  objects  are 
qualified,  as  a  power  of  appointing  to  the  children  of  the 
party  himself,  though  perhaps  it  may  enable  him  to  appoint 
life  estates  to  children  unborn  at  the  date  of  the  deed  creating 
the  power;  yet,  if  it  enables  him  to  appoint  life  estates  to 
those  children,  it  certainly  does  not  authorize  him  to  extend 
the  appointment  to  the  children  of  these  children,  so  as  to 


POWERS.  «g7 

\ 

make  them  take  by  purchase,  nor  to  appoint  any  other  estate, 
which  might  not  have  been  created  by  the  very  deed  creat- 
ing the  power.  In  all  cases  therefore  of  particular  or  quali- 
fied powers,  both  in  the  creation  and  the  exercise  of  them, 
care  should  be  taken  to  ascertain  that  the  uses  which  the 
party  is  empowered  to  raise  under  them,  or  actually  assumes 
to  raise  under  them,  when  he  comes  to  exercise  the  power, 
are  such  as  the  deed  creating  the  power  might  itself  have 
raised.  .  .  . — Butler's  Note,  in.,  4. 

LEAKE,  LAND  LAW,  387.  Powers  in  gross  in  a  person 
having  no  estate  in  the  land  are  distinguished  into  those 
which  the  donee  of  the  power  may  exercise  for  his  own 
benefit,  and  those  which  he  can  exercise  for  the  benefit  of 
others  only,  without  any  benefit  to  himself.  The  former 
partake  of  the  nature  of  property  or  interest,  and  may  there- 
fore be  released  or  extinguished  by  the  donee  of  the  power. 
An  instance  of  this  kind  of  power  occurs  where  a  person 
seised  in  fee  settles  his  whole  estate  upon  others,  but  reserves 
to  himself  a  power  of  revocation.  Such  power  is  a  power 
in  gross  and  part  of  his  old  dominion ;  by  revocation  of  the 
uses  he  would  be  restored  to  his  former  ownership ;  and  it  is 
therefore  capable  of  being  released  and  extinguished.  So 
if  the  power  of  revocation  be  reserved  to  the  heir  of  the 
settlor,  because  by  the  revocation  the  heir  would  be  restored 
to  the  estate. 

ID.,  394.  A  devise  to  a  person  in  terms  importing  that 
he  may  dispose  of  the  property  at  his  absolute  discretion 
confers  an  estate  in  fee  simple,  or  the  entire  interest,  and 
not  merely  a  power ;  but  this  construction  does  not  apply  to- 
a  conveyance  by  deed,  in  which  such  form  of  limitation 
would  merely  confer  a  power  of  appointment. 

ID->  395-  A  devise  to  a  person  for  life  expressly,  with 
remainder  to  such  persons  as  he  shall  by  deed  or  will  or 
otherwise  appoint,  does  not  give  him  the  absolute  interest ; 
although  he  may  acquire  it  by  an  exercise  of  the  power. 
So,  a  devise  to  a  person  for  life,  with  remainder  to  his 


388   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

"assigns,"  gives  him  a  life  estate  with  a  general  power  of 
appointment  over  the  remainder. 

WILLIAMS,  REAL  PROP.  ( i/th  ed.)r  462.  In  several  of 
the  States,  as  already  suggested,  the  subject  of  powers  is 
now  regulated  by  statute.  This  is  the  case  in  New  York, 
Michigan,  Wisconsin,  Minnesota  and  Dakota.  In  these 
States  powers,  except  as  authorized  and  provided  for  by 
statute,  are  abolished,  and  it  is  declared  that  the  creation, 
construction  and  execution  of  powers  shall  be  governed  by 
the  provisions  of  the  statute.  See  I  R.  S.  of  N.  Y.,  732-738. 
.  .  .  . — Hut  chins'  note. 

N.  Y.  REAL  PROP.  LAW,  §  in.  A  power  is  an  authority 
to  do  an  act  in  relation  to  real  property,  or  to  the  creation 
or  revocation  of  an  estate  therein,  or  a  charge  thereon,  which 
the  owner,  granting  or  reserving  the  power,  might  himself 
lawfully  perform. 

§  113.  A  power,  as  authorized  in  this  article,  is  either 
general  or  special,  and  either  beneficial  or  in  trust. 

§  114.  A  power  is  general  where  it  authorizes  the  transfer 
or  encumbrance  of  a  fee,  by  either  a  conveyance  of  a  will 
of  or  a  charge  on  the  property  embraced  in  the  power,  to 
any  grantee  whatever. 

§  115.    A  power  is  special  where  either: 

1.  The  persons  or  class  of  persons  to  whom  the  disposi- 
tion of  the  property  under  the  power  is  to  be  made  are 
designated;  or, 

2.  The  power  authorizes  the  transfer  or  encumbrance,  by 
a  conveyance,  will,  or  charge,  of  any  estate  less  than  a  fee. 

§  116.  A  general  or  special  power  is  beneficial  where 
no  person,  other  than  the  grantee,  has,  by  the  term  of  its 
creation,  any  interest  in  its  execution.  A  beneficial  power, 
general  or  special,  other  than  one  of  those  specified  and 
defined  in  this  article,  is  void. 

§  117.  A  general  power  is  in  trust,  where  any  person  or 
class  of  persons,  other  than  the  grantee  of  the  power, 


POWERS.  389 

is  designated  as  entitled  to  the  proceeds,  or  any  portion 
of  the  proceeds,  or  other  benefits  to  result  from  its  execu- 
tion. 

§  118.    A  special  power  is  in  trust,  where  either, 

1.  The  disposition  or  charge  which  it  authorizes  is  limited 
to  be  made  to  a  person  or  class  of  persons,  other  than  the 
grantee  of  the  power ;  or, 

2.  A  person  or  class  of  persons,  other  than  the  grantee, 
is  designated  as  entitled  to  any  benefit,  from  the  disposition 
or  charge  authorized  by  the  power. 

§  125.  Where  the  grantor  in  a  conveyance  reserves  to 
himself  for  his  own  benefit  an  absolute  power  of  revocation, 
he  is  to  be  still  deemed  the  absolute  owner  of  the  estate 
conveyed,  so  far  as  the  rights  of  creditors  and  purchasers 
are  concerned. 

§  129.  Where  an  absolute  power  of  disposition,  not  ac- 
companied by  a  trust,  is  given  to  the  owner  of  a  particular 
estate  for  life  or  for  years,  such  estate  is  changed  into  a  fee 
absolute  in  respect  to  the  rights  of  creditors,  purchasers, 
and  encumbrancers,  but  subject  to  any  future  estates  limited 
thereon,  in  case  the  power  of  absolute  disposition  is  not 
executed,  and  the  property  is  not  sold  for  the  satisfaction  of 
debts. 

§  130.  Where  a  like  power  of  disposition  is  given  to 
a  person  to  whom  no  particular  estate  is  limited,  such  person 
also  takes  a  fee,  subject  to  any  future  estates  that  may  be 
limited  thereon,  but  absolute  in  respect  to  creditors,  pur- 
chasers, and  encumbrancers. 

§  131.  Where  such  a  power  of  disposition  is  given,  and 
no  remainder  is  limited  on  the  estate  of  the  grantee  of  the 
power,  such  grantee  is  entitled  to  an  absolute  fee. 

§  132.  Where  a  general  and  beneficial  power  to  devise 
the  inheritance  is  given  to  a  tenant  for  life,  or  for  years, 
such  tenant  is  deemed  to  possess  an  absolute  power  of  dis- 
position within  the  meaning  of  and  subject  to  the  provisions 
of  the  last  three  sections. 

§  133.     Every  power  of  disposition  by  means  of  which 


39°   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

the  grantee  is  enabled,  in  his  lifetime,  to  dispose  of  the 
•entire  fee  for  his  own  benefit  is  deemed  absolute. 

§  139.  A  special  and  beneficial  power  is  liable  to  the 
claims  of  creditors  in  the  same  manner  as  other  interests 
that  cannot  be  reached  by  execution;  and  the  execution  of 
the  power  may  be  adjudged  for  the  benefit  of  the  creditors 
entitled. 

§  142.  The  execution,  wholly  or  partly,  of  a  trust  power 
may  be  adjudged  for  the  benefit  of  the  creditors  or  assignees 
of  the  person  entitled  as  a  beneficiary  of  the  trust,  to  compel 
its  execution,  where  his  interest  is  assignable. 

§  144.  A  beneficial  power,  and  the  interest  of  every  per- 
son entitled  to  compel  the  execution  of  a  trust  power,  shall 
pass,  respectively,  to  a  trustee  or  committee  of  the  estate 
of  the  person  in  whom  the  power  or  interest  is  vested,  or  an 
assignee  for  the  benefit  of  creditors. 


CHAPTER    V. 

PERPETUITIES. 

HARG.  LAW  TR.,  518.  When  executory  devises  were  first 
permitted,  it  was  foreseen  that  entails  made  in  that  form 
could  not  be  barred  by  fines  or  recoveries.  If  they  were  of 
real  estate,  the  extraordinary  devisee  could  not  be  barred  by 
fine;  because  the  title  of  the  executory  devisee  is  not 
through,  or  as  privy  to  the  immediate  taker,  but  quite  inde- 
pendent of  him ;  nor  could  the  executory  devisee  be  affected 
by  a  recovery,  it  being  soon  settled  that  the  recompense, 
which  in  the  supposition  of  law  is  the  ground  of  barring  the 
issue  in  tail  and  those  in  remainder  and  reversion,  doth  not 
extend  *o  an  executory  devisee.  If  they  were  of  personal 
estate,  whether  chattels  real  or  personal,  from  the  nature  of 
the  property  they  could  not  be  the  subject  of  either  fine  or 
recovery. 

Entails  by  executory  devise  being  thus  exempt  from  any 
legal  mode  of  barring  them,  it  became  necessary  to  prescribe 
bounds  and  limits  to  this  new  species  of  settlement,  lest 
otherwise  entails  should  obtain  a  longer  duration  through 
the  irregular  and  barely  permitted  medium  of  executory  de- 
vise, than  the  law  endures,  where  the  entail  commences  in 
the  regular  way  by  creating  estates  for  life  and  estates  tail 
with  remainders  over. 

Hence  originated  the  rule  both  at  law  and  in  equity,  that 
the  contingency,  on  which  executory  devises  depend,  should 
be  confined  to  a  stated  period ;  and  by  analogy  to  the  case  of 
strict  entails,  which  cannot  be  protected  from  fines  and  re- 
coveries longer  than  the  life  of  the  tenant  for  life  in  pos- 
session, and  the  attainment  of  twenty-one  by  the  first  issue 
in  tail,  it  was  at  length  settled,  that  the  longest  period  for 
vesting  of  an  executory  devise  should  be  any  life  or  lives  in 


392   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

being  and  twenty-one  years  after;  to  which  may  be  added 
a  few  months  more  for  the  case  of  a  posthumous  child. 
Therefore  every  contingency,  which  is  not  such,  that  if  it 
ever  happens,  it  must  necessarily  be  within  the  period  so 
described,  is  too  remote  for  an  executory  devise. 

LEAKE,  LAND  LAW,  439-442.  The  limitation  of  future 
estates  is  subject  to  restrictions  as  to  the  time  of  taking 
effect,  which  differ  according  to  the  nature  of  the  limitation, 
as  operating  by  way  of  remainder,  or  by  the  way  common 
to  springing  and  shifting  uses  and  executory  devises. 

The  restrictions  upon  limitations  by  way  of  remainder 
have  already  been  considered.  They  are,  for  the  most  part, 
involved  in  the  dependence  of  the  remainder  upon  the  par- 
ticular estate,  requiring  that  it  must  become  vested  in  inter- 
est pending  that  estate,  so  as  to  take  effect  in  possession  im- 
mediately upon  its  determination.  The  limitation  of  re- 
mainders is  further  restricted  by  the  positive  rule  that 
(though  they  may  be  limited  to  the  unborn  child  of  a  living 
person)  they  cannot  be  limited  to  the  issue  of  a  person  un- 
born. 

The  particular  estate  supporting  a  remainder  may  be  an 
estate  for  life  or  in  tail,  and  an  estate  tail  may  endure 
throughout  indefinite  generations  of  issue ;  but  the  tenant  in 
tail  in  possession  for  the  time  being,  when  of  full  age,  has 
the  power,  by  means  of  a  disentailing  assurance,  to  acquire 
or  convey  an  estate  in  fee-simple  discharged  of  all  remain- 
ders. Therefore,  the  limitation  in  remainder  after  an  estate 
tail  remains  effectual  only  during  the  minority  of  the  tenant 
in  tail ;  and  if  the  estate  tail  be  preceded  by  an  estate  or 
estates  for  life,  as  in  an  ordinary  settlement  of  land,  the 
limitations  in  remainder,  though  valid  in  creation,  cannot  be 
made  effectual  in  operation  beyond  the  lives  of  the  tenants 
for  life  and  twenty-one  years,  the  possible  minority  of  the 
tenant  in  tail. 

On  the  other  hand,  limitations  by  way  of  springing  use 
and  executory  devise  arise  and  take  effect  according  to  the 


PERPETUITIES.  393 

terms  of  limitation  independently  of  the  preceding  estates, 
which  they  supersede  and  defeat ;  consequently  there  are  no 
restrictions  inherent  in  the  nature  of  such  limitations  as  there 
are  in  remainders.  If  limited  after  or  in  defeasance  of  an 
estate  tail  they  may  be  discharged  or  destroyed  by  the  dis- 
entailing assurance  of  the  tenant  in  tail ;  but  a  tenant  in  fee 
simple  cannot  by  any  means  destroy  or  get  rid  of  the  execu- 
tory limitations  of  this  kind  which  may  operate  upon  his 
estate.  Therefore,  except  where  preceded  by  an  estate  tail, 
these  limitations  require  a  special  rule  of  restriction ;  other- 
wise they  might  be  employed  in  a  manner  to  restrain  the 
alienation  of  the  land  for  an  indefinite  period  or  in  per- 
petuity. 

A  rule  has  accordingly  become  established  by  judicial  de- 
cisions, founded  chiefly  on  analogy  to  the  limits  of  a  settle- 
ment at  common  law  by  way  of  particular  estates  and  re- 
mainders, that  limitations  by  way  of  springing  or  shifting 
use  or  executory  devise  must  take  effect  within  the  period 
of  a  life  or  lives  in  being  at  the  time  of  creating  the  limita- 
tions and  twenty-one  years  afterwards.  This  rule  is  known 
as  the  rule  against  perpetuities.  A  limitation  which  in- 
fringes the  rule  is  void  of  effect ;  but  it  is  not  therefore  to  be 
taken  as  struck  out  of  the  will  or  deed  altogether;  it  may  be 
read  as  part  of  the  context  for  all  purposes  of  construction, 
as  if  no  such  rule  existed.  The  lives  of  any  persons  and  of 
any  number  of  persons,  though  wholly  unconnected  with  the 
limitations  in  point  of  interest,  may  be  taken  for  the  measure 
of  the  period.  Also  a  term  of  twenty-one  years  independent 
of  any  estate  limited,  or  of  the  infancy  of  any  person  taking 
an  estate  or  interest.  If  lives  be  not  selected  as  part  of  the 
period  restrictive  of  the  limitation  the  rule  imports  that  it 
must  take  effect  within  twenty-one  years. 

As  a  child  in  venire  sa  mere  is  considered  as  a  person  in 
esse  for  the  purpose  of  taking  property,  the  limits  of  the 
rule  may  be  in  fact  extended  by  the  time  of  the  gestation  of 
such  child ;  thus,  if  a  devise  be  made  to  the  child  of  A.  for 
life,  such  child  being  in  venire  sa  mere  at  the  testator's 


394   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

death,  the  additional  time  of  gestation  may  accrue  at  the 
commencement  of  the  period  allowed  by  the  rule,  which 
may  be  measured  by  the  life  of  such  child  and  twenty-one 
years;  so,  if  a  devise  be  made  to  the  children  of  A.  who 
shall  attain  the  age  of  twenty-one  years,  and  A.  die,  leaving 
a  child  in  venire  so.  mere,  the  additional  time  of  gestation 
may  accrue  at  an  intermediate  period,  and  the  limits  of  the 
rule  may  be  extended  until  such  child  attains  the  age  of 
twenty-one  years;  so  if  the  ultimate  taker  after  a  given 
period  of  lives  in  being  and  twenty-one  years  be  a  child  in 
venire  sa  mere,  the  limits  of  the  rule  may  be  in  fact  ex- 
tended at  the  termination  of  the  period  by  the  time  of  gesta- 
tion. The  same  rule  applies  to  executory  bequests  of  terms 
of  years  and  chattel  interests  in  land ;  and,  it  seems,  also  to 
the  creation  of  future  terms  of  years. 

ID.,  441,  note.  It  may  be  here  observed  that  the  rule 
against  perpetuities,  though  framed  by  analogy  to  the  limits 
of  perpetuity  possible  with  common  law  limitations  by  way 
of  estates  for  life  and  remainders,  leads  to  some  different 
results.  The  latter  mode  of  limitation  is  restricted,  as  to 
perpetuity,  by  the  lives  of  the  persons  actually  taking  es- 
tates, and  by  the  actual  minority  of  the  ultimate  remainder- 
man ;  whereas  the  rule  against  perpetuities  admits  of  an  ab- 
solute period  measured  by  lives  and  years,  but  wholly  inde- 
pendent of  the  lives  or  minority  of  the  persons  actually  in- 
terested ;  and  in  the  case  of  the  ultimate  taker  at  the  extreme 
limit  of  the  period  being  a  minor  the  disability  to  alienate 
might  in  fact  be  extended  for  a  further  period  of  twenty- 
one  years.  Again,  the  rule  as  to  remainders  prohibits  ab- 
solutely the  limitation  of  them  to  the  issue  of  persons  un- 
born ;  but  the  rule  against  perpetuities  admits  of  executory 
limitations  to  the  children  or  remoter  issue  of  persons  un- 
born, provided  they  are  restricted  to  vest  within  the  allowed 
period ;  and  only  when  not  so  restricted  such  limitations  are 
void.  In  the  above  respects,  therefore,  remainders  are  more 
restricted  than  other  executory  limitations;  on  the  other  hand 
remainders  may  be  limited  on  events  of  indefinite  contin- 


PERPETUITIES.  395 

gency,  provided  they  become  vested  pending  the  particular 
estate.  See  I  Jarman  on  Wills,  229 ;  Stuart  v.  Cockerell,  L. 
R.  7  Eq.  363. 

WILLIAMS,  REAL  PROP,  (i/th  ed.),  476.  The  common 
law  rule  against  perpetuities,  which  is  fully  explained  and 
illustrated  in  the  text,  is  still  in  force  in  many  of  the  States. 
The  rule,  says  Professor  Gray,  has  been  carried  as  a  part  of 
the  common  law  "to  all  the  English  colonies  where  the  prin- 
ciples of  the  common  law  prevail.  .  .  .  Considering 
the  unformed  condition  of  the  doctrine  of  remoteness  at 
the  time  of  the  planting  of  the  American  colonies,  it  would 
have  been  quite  possible  for  it  to  have  developed  there  in  a 
different  shape  from  that  which  it  assumed  in  England. 
But  as  a  matter  of  fact  the  rule  seems,  in  the  absence  of  stat- 
ute, to  be  always  adopted  throughout  the  United  States 
in  its  modern  English  form."  Gray,  Perpetuities,  §  200. 
.  .  .  In  several  of  the  States  we  find  modifications  by 
statute  to  a  greater  or  less  extent  of  the  common-law  rule.1 
But  the  radical  change  was  made  in  the  State  of  New  York 
with  the  adoption  of  the  Revised  Statutes.  The  system  in- 
stituted in  that  State,  except  in  its  application  to  personal 
property,  has  since  been  followed  in  Michigan,  Wisconsin 
and  Minnesota. — Hutchins'  note. 

N.  Y.  REAL  PROP.  LAW,  §  32.  The  absolute  power  of 
alienation  is  suspended,  when  there  are  no  persons  in  being 
by  whom  an  absolute  fee  in  possession  can  be  conveyed. 
Every  future  estate  shall  be  void  in  its  creation,  which  shall 
suspend  the  absolute  power  of  alienation,  by  any  limitation 
or  condition  whatever,  for  a  longer  period  than  during  the 
continuance  of  not  more  than  two  lives  in  being  at  the  crea- 
tion of  the  estate ;  except  that  a  contingent  remainder  in  fee 
may  be  created  on  a  prior  remainder  in  fee,  to  take  effect  in 
the  event  that  the  persons  to  whom  the  first  remainder  is 
limited  die  under  the  age  of  twenty-one  years,  or  on  any 

1  See  Gray,  Perp.,  App.  C.;  2  Wash.  R.  P.,  795-799;  Chaplin,  Alien- 
ation, App. 


396   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

other  contingency  by  which  the  estate  of  such  persons  may 
be  determined  before  they  attain  full  age.  For  the  purposes 
of  this  section  a  minority  is  deemed  a  part  of  a  life  and  not 
an  absolute  term  equal  to  the  possible  duration  of  such 
minority. 

§  33.  Successive  estates  for  life  shall  not  be  limited, 
except  to  persons  in  being  at  the  creation  thereof ;  and 
where  a  remainder  shall  be  limited  on  more  than  two  succes- 
sive estates  for  life,  all  the  life  estates  subsequent  to  those  of 
the  two  persons  first  entitled  thereto  shall  be  void,  and  on  the 
death  of  those  persons  the  remainder  shall  take  effect,  in  the 
same  manner  as  if  no  other  life  estates  had  been  created. 

§  34.  A  remainder  shall  not  be  created  on  an  estate  for 
the  life  of  any  other  person  than  the  grantee  or  devisee  of 
such  estate,  unless  such  remainder  be  in  fee ;  nor  shall  a  re- 
mainder be  created  on  such  an  estate  in  a  term  of  years,  un- 
less it  be  for  the  whole  residue  of  such  term. 

§  35-  When  a  remainder  is  created  on  any  such  life 
estate-,  and  more  than  two  persons  are  named  as  the  persons 
during  whose  lives  the  life  estate  shall  continue,  the  re- 
mainder shall  take  effect  on  the  death  of  the  two  persons 
first  named,  as  if  no  other  lives  had  been  introduced. 

§  36.  A  contingent  remainder  shall  not  be  created  on  a 
term  of  years,  unless  the  nature  of  the  contingency  on  which 
it  is  limited  be  such  that  the  remainder  must  vest  in  interest, 
during  the  continuance  of  not  more  than  two  lives  in  being 
at  the  creation  of  such  remainder,  or  on  the  termination 
thereof. 

§  37.  No  estate  for  life  shall  be  limited  as  a  remainder  on 
a  term  of  years,  except  to  a  person  in  being  at  the  creation 
of  such  estate. 

§  39.  All  the  provisions  contained  in  this  article,  rela- 
tive to  future  estate,  apply  to  limitations  of  chattels,  real,  as 
well  as  of  freehold  estates,  so  that  the  absolute  ownership  of 
a  term  of  years  shall  not  be  suspended  for  a  longer  period 
than  the  absolute  power  of  alienation  can  be  suspended  in 
respect  to  a  fee. 


//.    Equitable   Estates — Trusts. 

LEAKE,  LAND  LAW,  243.  Equitable  estates  and  interests 
either  correspond  with  legal  estates  or  are  of  kinds  peculiar 
to  equity,  having  no  analogy  in  law.  .  .  . 

Equitable  estates  which  correspond  with  legal  estates 
comprise  estates  in  fee  simple  and  fee  tail,  estates  for  terms 
of  life  and  for  terms  of  years,  in  strict  analogy  to  the  legal 
estates  already  described.  They  are  created  either  by  ex- 
press limitation  or  by  construction  of  equity — either  by  de- 
clared or  by  constructive  trust.  In  the  express  limitation  of 
equitable  estates  corresponding  with  legal  estates,  as  regards 
the  quantity  of  estate,  equity,  in  general,  follows  the  law; 
the  same  terms  of  limitation  are  used,  and  receive  the  same 
construction  as  in  limiting  estates  at  law. 

ID.,  469-473.  In  the  limitation  of  equitable  estates,  cor- 
responding with  legal  estates,  future  estates  and  interests 
are,  in  general,  limited  in  the  same  manner,  and  the  same 
language  is  used  and  receives  the  same  construction,  as  in 
limiting  future  legal  estates :  according  to  the  principle  that 
equity  follows  the  law.  Accordingly,  the  equitable  estate 
may  be  limited  for  a  particular  estate  with  remainder,  or  with 
successive  remainders,  or  leaving  a  reversion,  as  at  law. 
But  the  limitation  of  the  trust  or  equitable  estate  is  free 
from  the  restrictive  rules  peculiar  to  the  quality  of  freehold 
tenure ;  for  these  rules  are  satisfied  in  their  application  to 
the  legal  estate  of  the  trustee  and  have  no  ulterior  effect  on 
the  beneficial  interest.  The  rule  of  common  law  that  the 
freehold  cannot  be  in  abeyance,  with  all  its  consequences  in 
legal  limitations,  has  no  application  in  equity.  Therefore, 
an  equitable  estate,  freehold  in  quantity,  may  be  limited  to 
commence  at  a  future  time,  or  upon  the  happening  of  a  fu- 


398   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

ture  event,  without  any  preceding  freehold  estate  to  support 
it  as  a  remainder.  So  an  equitable  estate  may  be  limited  to 
take  effect  in  defeasance  or  substitution  of  a  preceding  estate 
without  awaiting  its  determination,  in  the  same  manner  as  a 
shifting  use  or  executory  devise.  The  trust  or  equitable  in- 
terest in  leaseholds  or  terms  of  years  may  be  limited 
with  all  the  freedom  of  an  executory  bequest  of  personal 
estate.  .  .  . 

Future  limitations  of  the  trust  or  equitable  estate  are  sub- 
ject to  the  same  rule  against  perpetuities  as  future  legal  lim- 
itations by  way  of  springing  use  and  executory  devise,  and 
the  rule  is  applied  according  to  the  same  principles.  "It 
may  be  laid  down  without  any  qualification  that  no  nearer 
approach  to  a  perpetuity  can  be  made  through  the  medium 
of  a  trust,  or  will  be  supported  by  a  court  of  equity,  than 
can  be  made  by  legal  conveyances  of  legal  estates  or  inter- 
ests or  will  be  admitted  in  a  court  of  law.1 

By  means  of  a  trust  or  direction  for  that  purpose  the 
rents  and  profits  of  land  may  be  withdrawn  from  present 
ownership  and  accumulated  for  the  benefit  of  a  future  and 
uncertain  owner.  Such  dispositions  were  impossible  at  the 
common  law  on  account  of  the  rule  that  the  freehold  could 
never  be  in  suspense.  Trusts  and  directions  to  accumulate 
rents  and  profits  for  future  disposition  are  subject  to  the 
rule  against  perpetuities.  .  .  . 

The  rules  restrictive  of  contingent  remainders  at  the  com- 
mon law  have  no  application  in  equity.  A  contingent  limi- 
tation of  the  equitable  estate,  though  in  the  form  of  a  con- 
tingent remainder  at  law,  may  take  effect  as  and  when  it  is 
limited  to  arise,  subject  only  to  the  rule  against  perpetuities. 
It  is  not  affected  by  the  determination  of  the  preceding 
estate  before  the  happening  of  the  contingency  upon  which 
it  depends.  Thus  under  a  trust  for  A.  for  life  and  after  his 
death  for  the  children  of  A.  who  should  attain  twenty-one, 
the  trust  for  the  children  will  not  fail  by  reason  of  A.  dying 
before  any  child  has  attained  that  age,  as  would  be  the  case 
1  Butler's  Note  to  Co.  Lit.,  290,  b,  sec.  14. 


EQUITABLE    ESTATES TRUSTS.  399 

with  a  contingent  remainder  at  law  in  the  same  terms.  So 
under  a  trust  for  A.  for  life  and  after  his  death  to  the  chil- 
dren of  B.,  the  trust  for  the  children  of  B.  does  not  fail  upon 
the  death  of  A.  before  children  of  B.  exist. 

If  a  contingent  limitation  be  made  without  any  preceding 
estate,  or  if  a.  contingent  limitation  do  not  vest  until  after 
the  determination  of  the  preceding  estate,  the  intermediate 
interest,  unless  otherwise  disposed  of,  results  to  the  settlor 
or  his  heir,  or  falls  into  the  residue  of  his  estate. 

The  rule  in  Shelley's  Case,  by  which  limitations  in  the 
form  of  remainders  to  the  heirs  or  to  the  heirs  of  the  body, 
after  an  estate  of  freehold  in  the  ancestor,  are  referred  to 
the  estate  of  the  ancestor,  is  applied  by  analogy  in  constru- 
ing the  like  limitations  of  equitable  estates,  and  upon  the 
same  principles  upon  which  it  is  applied  to  legal  limitations. 
But  it  can  be  applied  only  where  the  limitations  to  the 
ancestor  and  to  the  heirs  are  homogeneous,  either  both  legal 
or  both  equitable;  if  the  estate  limited  to  the  ancestor  is 
equitable  and  the  remainder  to  the  heirs  is  legal,  or  con- 
versely, the  rule  is  not  applicable.  Where  both  the  limita- 
tions are  legal,  a  trust  imposed  upon  one  of  them  does  not 
prevent  the  application  of  the  rule  to  the  legal  limitations ; 
for  a  court  of  law,  in  construing  legal  limitations,  takes  no 
notice  of  trusts. 

ID.,  244.  But  the  rules  of  limitation  apply  only  to  express 
declarations  of  trust,  and  have  no  application  to  those  equi- 
table estates,  which,  though  corresponding  with  legal  es- 
tates, arise  by  construction  of  equity.  Such  are  the  con- 
structive trusts  or  equitable  estates  and  interests  based  upon 
the  payment  of  the  consideration  of  a  purchase — or  which 
arise  from  a  mere  contract  to  purchase — or  resulting  trusts 
which  arise  upon  a  legal  conveyance  not  disposing  of  the 
whole  equitable  interest,  or  failing  in  effect  to  dispose  of 
it.  Trusts  and  equitable  estates  thus  arising  are,  for  the 
most  part,  measured  and  limited  by  the  legal  estates  and 
interests  on  which  they  are  imposed.  Thus,  the  equitable  es- 
tate attributed  to  the  payment  of  a  consideration  is  co-exten- 


4<X>       READINGS    IN    THE    LAW    OF    REAL    PROPERTY. 

sive  with  the  legal  estate  to  which  it  is  referred ;  so  a  result- 
ing trust  includes  the  whole  undisposed  of  estate  to  which  it 
applies ;  so  by  a  contract  of  sale  which  equity  would  specifi- 
cally enforce  the  purchaser  may  acquire  an  equitable  estate 
in  fee  or  other  the  whole  interest  which  the  vendor  con- 
tracts to  sell  without  any  technical  limitation. 

ID.,  473.  Trusts  for  conversion,  charges  of  money  for 
portions,  legacies,  debts,  etc.,  constituting  equitable  inter- 
ests in  land  of  a  kind  peculiar  to  equity,  and  having  no  cor- 
respondence with  legal  estates,  may  also  be  limited  to  take 
effect  at  a  future  time  or  upon  the  happening  of  some  event 
or  contingency,  subject  only  to  the  rule  against  perpetuities. 

WILLIAMS,  REAL  PROP.  (i7th  ed.),  430.  Contingent  re- 
mainders may  also  be  limited  of  trust  estates.  But  between 
such  contingent  remainders,  and  contingent  remainders  of 
estates  at  law,  there  was  also  this  difference,  that  whilst  the 
latter  were  destructible,  the  former  were  not.  The  destruc- 
tion of  a  contingent  remainder  of  an  estate  at  law  de- 
pended, as  we  have  seen,  on  the  ancient  feudal  rule,  which 
required  a  continuous  and  ascertained  possession  of  every 
piece  of  land  to  be  vested  in  some  freeholder.  But  in  the 
case  of  trust  estates,  the  feudal  possession  remains  with  the 
trustee.  And,  as  the  destruction  of  contingent  remainders 
at  law  defeated,  when  it  happened,  the  intention  of  those 
who  created  them,  equity  did  not  so  far  follow  the  law  as  to 
introduce  into  its  system  a  similar  destruction  of  contingent 
remainders  of  trust  estates.  It  rather  compelled  the  trustees 
continually  to  observe  the  intention  of  those  whose  wishes 
they  had  undertaken  to  execute.  .  .  . 


BOOK   IV. 

RIGHTS  LESS  THAN  OWNERSHIP. 

Many  of  these  rights  have  been  more  conveniently  dis- 
cussed in  other  connections.  Easements,  profits  a  prendre 
and  other  incorporeal  hereditaments  have  been  treated  at 
length,  pp.  22-37,  supra;  equitable  interests  generally,  under 
the  description  of  Trusts,  pp.  165-178  and  397-400;  contin- 
gent future  interests,  pp.  333-357;  powers  of  appointment, 
PP-  383-39°;  rights  of  entry,  pp.  300-315,  358-363  and  457- 
469;  escheat  and  possibilities  of  reverter,  pp.  363-369,  and 
creditors'  rights,  pp.  525-531.  As  the  law  of  mortgages  is  a 
composite  of  legal  and  equitable  relations,  it  has  seemed  best 
to  deal  with  it  separately  in  this  place. 


CHAPTER  I. 

MORTGAGES. 

LIT.,  §  332.  Of  Estates  upon  Condition. — Item,  if  a  feoff- 
ment  be  made  upon  such  condition,  that  if  the  feoffor  pay  to 
the  feoffee  at  a  certain  day,  &c.,  40  pounds  of  money,  that 
then  the  feoffor  may  re-enter,  &c. ;  in  this  case  the  feoffee 
is  called  tenant  in  morgage,  which  is  as  much  to  say  in 
French  mort  gage,  and  in  Latin  mortuum  vadium.  And  it 
seemeth  that  the  cause  why  it  is  called  mortgage  is,  for  that 
it  is  doubtful  whether  the  feoffor  will  pay  at  the  day  limited 
such  summe  or  not :  and  if  he  doth  not  pay,  then  the  land 
which  is  put  in  pledge  upon  condition  for  the  payment  of 
the  money  is  taken  from  him  for  ever,  and  so  dead  to  him 
upon  condition,  &c.  And  if  he  doth  pay  the  money,  then  the 
pledge  is  dead  as  to  the  tenant,  &c. 

§  333-  Also,  as  a  man  may  make  a  feoffment  in  fee  in 
morgage,  so  a  man  may  make  a  gift  in  tayle  in  morgage,  and 
a  lease  for  terme  of  life,  or  for  terme  of  yeares  in  morgage. 
And  all  such  tenants  are  called  tenants  in  morgage,  accord- 
ing to  the  estates  which  they  have  in  the  land. 

2  BL.  COM.,  157-160.  There  are  some  estates  defeasible 
upon  condition  subsequent,  that  require  a  more  peculiar  no- 
tice. Such  are, 

Estates  held  in  vadio,  in  gage,  or  pledge ;  which  are  of  two 
kinds,  vivum  vadium,  or  living  pledge ;  and  mortuum  va- 
dium, dead  pledge,  or  mortgage. 

Vivum  vadium,  or  living  pledge,  is  when  a  man  borrows  a 
sum  (suppose  2OO/.)  of  another;  and  grants  him  an  estate, 
as  of  2O/.  per  annum,  to  hold  till  the  rents  and  profits  shall 
repay  the  sum  so  borrowed.  This  is  an  estate  conditioned  to 
be  void  as  soon  as  such  sum  is  raised.  And  in  this  case  the 
land  or  pledge  is  said  to  be  living ;  it  subsists,  and  survives 


MORTGAGES.  403 

the  debt ;  and  immediately  on  the  discharge  of  that,  results 
back  to  the  borrower.  But  mortuum  vadium,  a  dead  pledge, 
or  mortgage  (which  is  much  more  common  than  the  other), 
is  where  a  man  borrows  of  another  a  specific  sum  (e.g.,  2OO/. ) 
and  grants  him  an  estate  in  fee,  on  condition  that  if  he,  the 
mortgagor,  shall  repay  the  mortgagee  the  said  sum  of  2OoL 
on  a  certain  day  mentioned  in  the  deed,  that  then  the  mort- 
gagor may  re-enter  on  the  estate  so  granted  in  pledge;  or, 
as  is  now  the  more  usual  way,  that  then  the  mortgagee  shall 
reconvey  the  estate  to  the  mortgagor :  in  this  case,  the  land, 
which  is  so  put  in  pledge,  is-  by  law,1  in  case  of  non-payment 
at  the  time  limited,  forever  dead  and  gone  from  the  mort- 
gagor; and  the  mortgagee's  estate  in  the  lands  is  then  no> 
longer  conditional,  but  absolute.  But,  so  long  as  it  continues 
conditional,  that  is,  between  the  time  of  lending  the  money 
and  the  time  allotted  for  payment,  the  mortgagee  is  called 
tenant  in  mortgage.  But  as  it  was  formerly  a  doubt  whether, 
by  taking  such  estate  in  fee,  it  did  not  become  liable  to  the 
wife's  dower  and  other  encumbrances  of  the  mortgagee 
(though  that  doubt  has  been  long  ago  overruled  by  our 
courts  of  equity),  it  therefore  became  usual  to  grant  only  a 
long  term  of  years  by  way  of  mortgage ;  with  condition  to  be 
void  on  repayment  of  the  mortgage-money  :  which  course  has 
been  since  pretty  generally  continued,  principally  because  orr 
the  death  of  the  mortgagee  such  term  becomes  vested  in  his 
personal  representatives,  who  alone  are  entitled  in  equity  to 
receive  the  money  lent,  of  whatever  nature  the  mortgage  may/ 
happen  to  be. 

As  soon  as  the  estate  is  created,  the  mortgagee  may  im- 
mediately enter  on  the  lands ;  but  is  liable  to  be  dispossessed, 
upon  performance  of  the  condition  by  payment  of  the  mort- 
gage-money at  the  day  limited.  And  therefore  the  usual  way 
is  to  agree  that  the  mortgagor  shall  hold  the  land  till  the  day 
assigned  for  payment ;  when,  in  case  of  failure,  whereby  the 

1  The  student  will  observe  that  by  "  law  "  is  here  meant  the  law  as 
administered  in  the  common-law  courts  ;  in  equity  a  different  rule  pre- 
vails.— CAitly. 


404   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

estate  becomes  absolute,  the  mortgagee  may  enter  upon  it  and 
take  possession,  without  any  possibility  at  law  of  being  after- 
wards evicted  by  the  mortgagor,  to  whom  the  land  is  now 
forever  dead.  But  here  again  the  courts  of  equity  interpose ; 
and,  though  a  mortgage  be  thus  forfeited,  and  the  estate 
absolutely  vested  in  the  mortgagee  at  the  common  law,  yet 
they  will  consider  the  real  value  of  the  tenements  compared 
with  the  sum  borrowed.  And,  if  the  estate  be  of  greater 
value  than  the  sum  lent  thereon,  they  will  allow  the  mort- 
gagor at  any  reasonable  time  to  recall  or  redeem  his  estate ; 
paying  to  the  mortgagee  his  principal,  interest  and  expenses  : 
for  otherwise,  in  strictness  of  law,  an  estate  worth  iooo/. 
might  be  forfeited  for  non-payment  of  lool.  or  a  less  sum. 
This  reasonable  advantage,  allowed  to  mortgagors,  is  called 
the  equity  of  redemption:  and  this  enables  a  mortgagor  to 
call  on  the  mortgagee,  who  has  possession  of  his  estate,  to 
deliver  it  back  and  account  for  the  rents  and  profits  received, 
on  payment  of  his  whole  debt  and  interest ;  thereby  turning 
the  mortuum  into  a  kind  of  vivuin  vadium.  But,  on  the 
other  hand,  the  mortgagee  may  either  compel  the  sale  of  the 
estate,  in  order  to  get  the  whole  of  his  money  immediately ;  or 
else  call  upon  the  mortgagor  to  redeem  his  estate  presently, 
or,  in  default  thereof,  to  be  forever  foreclosed  from  redeem- 
ing the  same ;  that  is,  to  lose  his  equity  of  redemption  with- 
out possibility  of  recall.  And  also,  in  some  cases  of  fraudu- 
lent mortgages,  the  fraudulent  mortgagor  forfeits  all  equity 
of  redemption  whatsoever.  It  is  not,  however,  usual  for 
mortgagees  to  take  possession  of  the  mortgaged  estate,  un- 
less where  the  security  is  precarious,  or  small ;  or  where 
the  mortgagor  neglects  even  the  payment  of  interest:  when 
the  mortgagee  is  frequently  obliged  to  bring  an  ejectment, 
and  take  the  land  into  his  own  hands  in  the  nature  of  a 
pledge,  or  the  pignus  of  the  Roman  law :  whereas,  while  it 
remains  in  the  hands  of  the  mortgagor,  it  more  resembles 
their  hypotheca,  which  was,  where  the  possession  of  the 
thing  pledged  remained  with  the  debtor.  But  by  statute  7 
Geo.  II.,  c.  20,  after  payment  or  tender  by  the  mortgagor  of 


MORTGAGES.  405 

principal,  interest,  and  costs,  the  mortgagee  can  maintain 
no  ejectment;  but  may  be  compelled  to  re-assign  his  secu- 
rities. In  Glanvil's  time,  when  the  universal  method  of  con- 
veyance was  by  livery  of  seisin  or  corporal  tradition  of  the 
lands,  no  gage  or  pledge  of  lands  was  good  unless  possession 
was  also  delivered  to  the  creditor;  "si  non  sequatur  ipsius 
vadii  traditio,  curia  domini  regis  hujusmodi  privata-s  con- 
ventiones  tueri  non  solet;"  for  which  the  reason  given  is,  to 
prevent  subsequent  and  fraudulent  pledges  of  the  same  land : 
"cum  in  tali  casu  possit  eadem  res  pluribus  aliis  creditoribus 
turn  prius  turn  posterius  invadiari."1  And  the  frauds  which 
have  arisen  since  the  exchange  of  these  public  and  notorious 
conveyances  for  more  private  and  secret  bargains,  have  well 
evinced  the  wisdom  of  our  ancient  law. 

DIGBY,  HIST.  REAL  PROP.,  Chi  V.,  §  5  (2).  Mortgages. — 
The  second  class  of  creditors'  rights  above  noticed2  exist 
when,  without  the  intervention  of  any  legal  process,  the 
debtor  has  voluntarily  given  his  land  as  security  for  the  debt. 

This  practice  is  very  ancient.  Pledges  of  land  are  often 
mentioned  in  Domesday.  In  the  time  of  Glanyill  pledges  of 
land  were  of  two  kinds,  vivum  vadium  and  mortuum  vadium. 
Where  a  vivum  vadium  was  created,  the  land  was  conveyed 
to  the  creditor  to  be  held  by  him  for  a  certain  time,  during 
which  the  rents  and  profits  went  towards  the  discharge  of 
the  debt.  In  a  mortuum  vadium  there  was  no  such  arrange- 
ment as  to  the  profits.  The  latter  class  of  security  was  looked 
OH  as  a  species  of  usury,  and,  though  not  absolutely  pro- 
hibited, rendered  the  creditor  liable  to  the  penalties  of  usury. 
It  appears  however  that  upon  payment  of  the  debt  the  debtor 
might  recover  the  land  just  as  in  the  case  of  a  pledge  of  a 
personal  chattel.  In  the  time  of  Littleton  a  mortgage  had 
become  a  species  of  estate  upon  condition.  The  land  was 
conveyed,  usually  by  feoffment,  by  the  debtor  to  the  creditor, 
subject  to  the  condition  that  on  repayment  of  the  loan  by 
a  certain  day  the  feoff  or  (the  debtor)  might  re-enter.  On 
1  L.  io,  c.  8.  8  Digby,  Ch.  V.,  §  5. 


406   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

the  failure  of  the  feoffor  to  perform  the  condition,  the  law 
refused  to  regard  the  fact  that  the  real  nature  and  intent 
of  the  transaction  was  that  the  land  should  be  held  by  the 
feoffee  merely  as  a  security  for  a  debt,  and  insisted  on  the 
enforcing  of  the  rules  relating  to  estates  upon  condition  in  all 
their  strictness,  holding  that  the  estate  was  thereupon  vested 
absolutely  in  the  feoffee. 

In  later  times,  when  the  jurisdiction  of  the  Chancellor  was 
firmly  established,  the  rights  and  duties  of  mortgagor  and 
mortgagee  recognized  by  Equity  became  wholly  different 
from  those  recognized  by  Law.  In  form  the  transaction  is 
still  at  the  present  day  a  conveyance  of  the  lands,  subject 
to  a  condition  for  re-entry,  or  more  commonly  to  an  agree- 
ment for  reconveyance  by  the  mortgagee  to  the  mortgagor, 
on  payment  of  the  debt  on  a  certain  day,  and  to  a  proviso 
that,  until  default  in  payment  of  the  debt,  the  mortgagor 
is  to  remain  in  possession.  So  far  as  the  legal  estate,  or  in- 
terest at  common  law,  is  concerned,  the  ordinary  rules  gov- 
erning conveyances  of  land  apply ;  no  notice  is  taken  of  the 
object  of  the  transaction;  the  mortgagor,  who  remains  in 
possession,  is  considered  to  have  an  interest  in  the  nature 
of  a  term  until  default  made  in  the  payment  of  the  debt ; 
after  default,  the  whole  legal  property  in  the  land  passes 
Irrevocably  to  the  mortgagee,  with  all  its  incidents.  For 
instance,  a  mortgagor,  after  default  in  payment  of  the  mort- 
gage debt,  cannot,  except  under  the  special  powers  created 
by  the  Conveyancing  and  Law  of  Property  Act  iSSi,1  make 
a  valid  lease  of  the  lands  without  the  concurrence  of  the 
mortgagee.  In  Equity,  however,  the  real  nature  of  the  trans- 
action is  regarded,  and  even  after  default  is  made,  notwith- 
standing the  terms  of  the  instrument  creating  the  mortgage, 
the  mortgagee  will  be  made  to  reconvey  the  land  to  the  mort- 
gagor on  payment  of  debt,  interest,  and  costs.  The  right 
which  remains  in  the  mortgagor  is  called  his  equity  of  re- 
demption (right  to  redeem),  and  is  in  fact  the  ownership 
of  the  land  subject  to  the  mortgage  debt. 
'44&  45  Viet.,  c.  41. 


CHAPTER   II. 

PUBLIC  RIGHTS, 
(a)  In  Public  Lands  and  Waters. 

HALE,  DE  JURE  MARIS,  Cap.  IV.  The  narrow  sea,  adjoin- 
ing to  the  coast  of  England,  is  part  of  the  wast  and  demesnes 
and  dominions  of  the  king  of  England,  whether  it  lie  within 
the  body  of  any  county  or  not.  .  .  . 

But  though  the  king  is  the  owner  of  this  great  wast,  and 
as  a  consequent  of  his  propriety  hath  the  primary  right  of 
fishing  in  the  sea  and  the  creekes  and  armes  thereof ;  yet  the 
common  people  of  England  have  regularly  a  liberty  of  fish- 
ing in  the  sea  or  creekes  or  armes  thereof,  as  a  publick  com- 
mon of  piscary,  and  may  not  without  injury  to  their  right 
be  restrained  of  it,  unless  in  such  places,  creeks  or  navigable 
rivers,  where  either  the  king  or  some  particular  subject  hath 
gained  a  propriety  exclusive  of  that  common  liberty.  .  .  . 

The  shore  is  that  ground  that  is  between  the  ordinary 
high-water  and  low-water  mark.  This  doth  prima  facie  and 
of  common  right  belong  to  the  king,  both  in  the  shore  of  the 
sea  and  the  shore  of  the  arms  of  the  sea.  .  .  .  That  is 
called  an  arm  of  the  sea  where  the  sea  flows  and  reflows, 
and  so  far  only  as  the  sea  so  flows  and  reflows ;  so  that  the 
river  of  Thames  above  Kingston  and  the  river  of  Severn 
above  Tewkesbury,  &c.,  though  there  they  are  publick  rivers, 
yet  are  not  arms  of  the  sea. 

5  B.  &  ALD.,  268.  By  the  common  law,  all  the  king's 
subjects  have  in  -general  a  right  of  passage  over  the  sea 
with  their  ships,  boats  and  other  vessels,  for  the  purposes  of 
navigation,  commerce,  trade  and  intercourse,  and  also  in 
navigable  rivers ;  and  they  have  also,  prima  facie,  a  common 


408   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

of  fishery  there.  .  .  .  These  rights  are  noticed  by  Lord 
Hale ;  but  whatever  further  rights,  if  any,  they  may  have  in 
the  sea  or  in  navigable  rivers,  it  is  a  very  different  question 
whether  they  have  or  how  far  they  have,  independently  of 
necessity  or  usage,  public  rights  upon  the  shore  (that  is  to 
say,  between  the  high  and  low  water-mark)  when  it  is  not 
sea,  or  covered  with  water.  .  .  . — Per  Holroyd,  J.,  in 
Blundell  v.  Catterall  (1821). 

98  N.  Y.  REP.,  642.  The  seashore  is  not  a  highway  for 
public  travel  upon  foot  or  with  vehicles.  It  is  a  part  of  the 
ocean,  and  that  is  a  public  highway  for  vessels.  Every  one 
can,  however,  unless  the  public  authorities  by  lawful  action 
interfere,  go  upon  the  seashore  between  high  and  low  water- 
mark to  fish,  to  bathe,  or  for  any  other  lawful  purpose.  But 
obviously  he  must  use  the  shore  as  he  finds  it,  and  he  can 
look  to  no  one  for  any  damages  he  sustains  there  from  any 
defects  therein. — Per  Earl,  J.,  in  Murphy  v.  City  of  Brook- 
lyn (1885). 

(&)  In  Private  Lands  and  Waters. 
(i)  RIVERS. 

HALE,  DE  JURE  MARIS,  Cap.  I.  Fresh  rivers,  of  what 
kind  soever,  do  of  common  right  belong  to  the  owners  of  the 
soil  adjacent;  so  that  the  owners  of  the  one  side  have,  of 
common  right,  the  propriety  of  the  soil,  and  consequently 
the  right  of  fishing,  usque  filum  aquae;  and  the  owners  of 
the  other  side  the  right  of  soil  or  ownership  and  fishing  unto 
the  filum  aquae  on  their  side.  And  if  a  man  be  owner  of  the 
land  of  both  sides,  in  common  presumption  he  is  the  owner 
of  the  whole  river,  and  hath  the  right  of  fishing  according  to 
the  extent  of  his  land  in  length.  With  this  agrees  the  com- 
mon experience.  .  .  . 

Though  fresh  rivers  are  in  point  of  propriety  as  before 
prima  facie  of  a  private  interest ;  yet  as  well  fresh  rivers 
as  salt,  or  such  as  flow  and  reflow,  may  be  under  these  two 
servitudes,  or  affected  with  them;  viz.,  one  of  prerogative, 


PUBLIC    RIGHTS.  409 

belonging  to  the  king,  and  another  of  public  interest,  or  be- 
longing to  the  people  in  general. 

ID.,  Cap.  III.  There  be  some  streams  or  rivers  that  are 
private,  not  only  in  propriety  or  ownership,  but  also  in  use,  as 
little  streams  and  rivers  that  are  not  a  common  passage  for 
the  king's  people.  Again,  there  be  other  rivers,  as  well  fresh 
as  salt,  that  are  of  common  or  publick  use  for  carriage  of 
boats  and  lighters.  And  these,  whether  they  are  fresh  or 
salt,  whether  they  flow  and  reflow  or  not,  are  prinia  facie 
publici  juris,  common  highways  for  man  or  goods  or  both, 
from  one  inland  town  to  another.  Thus  the  rivers  of  Wey, 
of  Severn,  of  Thames,  and  divers  others,  as  well  above  the 
bridges  and  ports  as  below,  as  well  above  the  flowings  of 
the  sea  as  below,  and  as  well  where  they  are  become  to  be 
of  private  propriety  as  in  what  parts  they  are  of  the  king's 
propriety,  are  publick  rivers  juris  publici.  And  therefore 
all  nuisances  and  impediments  of  passages  of  boats  and  ves- 
sels, though  in  the  private  soil  of  any  person,  may  be  pun- 
ished by  indictments  and  removed ;  and  this  was  the  reason 
of  the  statute  of  Magna  Charta,  cap.  23. 

2  B.  &  P.,  472.  [In  trespass  for  entering  upon  plaintiff's 
sea-shore  and  digging  and  taking  shell-fish  and  shells  there- 
from] The  COURT  were  of  opinion  that  if  the  plaintiff  had  it 
in  his  power  to  abridge  the  common  law  right  of  the  sub- 
ject to  take  sea-fish,  he  should  have  replied  that  matter 
specially,  and  that,  not  having  done  so,  the  defendant  must 
succeed  upon  his  plea  so  far  as  related  to  the  taking  of  the 
fish ;  but  observed  that  as  no  authority  had  been  cited  to 
support  his  claim  to  take  shells,  they  should  pause  before 
they  established  a  general  right  of  that  kind. — Bagott  v. 
Orr  (1801). 

(2)    HIGHWAYS. 

LEAKE,  USES  OF  LAND,  482.  The  rights  in  alieno  solo 
above  treated1  belong  to  a  person  in  a  private  or  corporate 

1  The  reference  is  to  Easements,  Profits  a  prendre  and  Rents  ;  Leake, 
Uses  of  Land,  185-481. 


4IO   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

capacity,  and  are  rights  of  property  in  the  strict  meaning 
of  the  term.  The  rights  in  alieno  solo  here  treated  belong  to 
a  person  only  as  one  of  the  public ;  and  they  differ  from 
rights  of  property  in  having  no  determinate  owner,  personal 
or  corporate.  They  are  common  to  the  public  at  large,  or  to 
a  part  of  the  public  limited  by  a  certain  locality  or  descrip- 
tion, and  they  are  distinguished  accordingly  as  being  general 
or  local.  Of  the  former  kind  are  all  public  rights  of  way, 
highways,  bridges  and  the  like,  which  are  for  the  use  and 
accommodation  of  all  subjects  of  the  realm.  Of  the  latter 
kind  are  privileges  of  persons  within  some  limited  district 
of  using  land  for  purposes  of  local  convenience,  such  as 
a  right  of  way  to  church  or  market,  or  a  right  of  enjoying 
an  open  space  for  exercise  or  recreation.  The  former  kind 
of  public  rights  are  founded  upon  the  general  custom  of  the 
realm  or  common  law ;  the  latter  upon  the  special  custom  of 
the  district,  or  lex  loci.  The  public,  ^as  such,  can  acquire  no 
right  to  take  profits  in  alieno  solo. 

A  public  way  or  highway  is  a  right  of  passage  for  the  pub- 
lic in  general.  It  resembles  an  easement  in  regard  to  the 
servient  tenement,  but  differs  from  an  easement  in  there 
being  no  dominant  tenement,  without  which  there  can  be 
no  easement  properly  so  called.  But  "in  truth,  a  public  road 
or  highway  is  not  an  easement ;  it  is  a  dedication  to  the  public 
of  the  occupation  of  the  surface  of  the  land  for  the  purpose 
of  passing  and  repassing,  the  public  generally  taking  upon 
themselves  (through  the  parochial  authorities  or  otherwise) 
the  obligation  of  repairing  it.  It  is  clear  that  that  is  a  very 
different  thing  from  an  ordinary  easement,  where  the  occu- 
pation remains  in  the  owner  of  the  servient  tenement  subject 
to  the  easement."1 

487.  In  the  absence  of  evidence  to  the  contrary,  the 
presumption  is  that  the  soil  of  the  highway  belongs  to  the 
owner  of  the  inclosed  lands  between  which  it  passes ;  and  if 
the  land  on  each  side  of  the  road  is  held  by  different  owners, 
the  presumption  is  that  each  side  of  the  highway  to  the 
1  Cairns,  L.  J.,  Rangeley  v.  Midland  Ry.,  L.  R.  3  Ch.  3  11. 


PUBLIC    RIGHTS.  411 

medium  filum  viae  belongs  to  the  owner  of  the  adjoining 
land. 

490.  "The  owner,  who  dedicates  to  public  use  as  a 
highway  a  portion  of  his  land,  parts  with  no  other  right  than 
a  right  of  passage  to  the  public  over  the  land  so  dedicated, 
and  may  exercise  all  other  rights  of  ownership  not  inconsist- 
ent therewith."1  Thus,  trees  growing  upon  the  highway, 
though  they  may-  be  removeable  as  obstructions  to  the  traf- 
fic, presumptively  belong  to  the  owner  of  the  soil.  .  .  . 

The  owner  of  the  soil  may  bring  an  action  of  trespass  for 
an  invasion  of  his  possession ;  and  he  may  maintain  an  ac- 
tion of  ejectment  to  recover  possession  of  an  encroachment 
wrongfully  made.  The  court  will  also  grant  an  injunction  to 
restrain  a  continuing  trespass  to  the  soil  of  a  highway;  as 
where  a  person  opened  the  surface  and  laid  waterpipes  in  the 
soil  without  the  consent  of  the  owner.  ...  A  person 
using  a  highway  for  any  purpose  other  than  passing  and  re- 
passing  according  to  the  lawful  use,  is  a  trespasser  against 
the  owner  of  the  soil ;  as  if  he  puts  his  cattle  upon  the  high- 
way to  feed.  .  .  . 

495.  The  public  are  entitled  to  use  a  highway  for  pass- 
ing and  repassing,  on  foot,  or  with  horses,  carts  and  cat- 
tle, according  to  the  species  of  highway ;  any  other  use  of  the 
highway  that  obstructs  the  public  use  of  any  part  of  the 
highway  for  passing  and  repassing  is  a  nuisance,  which  may 
be  met  by  indictment  on  behalf  of  the  public,  or  by  action  at 
the  suit  of  a  person  suffering  damage,  or  in  some  cases  by 
summary  proceedings  for  penalties. 

1  Per  cur.,  St.  Mary  Newington  v.  Jacobs,  L.  R.  7  Q.  B.  47. 


BOOK  V. 

THE  CREATION  AND  TRANSFER  OF  INTERESTS 
IN    LAND. 

A.  AT  COMMON  LAW. 
/.    Title  by  Act  of  the  Parties. 


CHAPTER  I. 
PURCHASE   AND   DESCENT. 

LIT.,  §  12.  Also,  purchase  is  called  the  possession  of 
lands  or  tenements  that  a  man  hath  by  his  deed  or  agree- 
ment, unto  which  possession  he  cometh  not  by  title  of  de- 
scent from  any  of  his  ancestors,  or  of  his  cousins,  but  by 
his  owne  deed. 

Co.  LIT.,  18,  b.  A  purchase  is  alwayes  intended  by  title, 
and  most  properly  by  some  kinde  of  conveyance  either  for 
money  or  some  other  consideration,  or  freely  of  gift ;  for 
that  is  in  law  also  a  purchase.  But  a  descent,  because  it 
commeth  meerely  by  act  of  law,  is  not  said  to  be  a  purchase ; 
and  accordingly  the  makers  of  the  act  of  parliament  in 
i  H.  5,  ca.  5,  speake  of  them  that  have  lands  or  tenements 
by  purchase  or  descent  of  inheritance.  And  so  it  is  of  an 
escheate  or  the  like,  because  the  inheritance  is  cast  upon, 
or  a  title  vested  in  the  lord  by  act  in  law,  and  not  by  his 


PURCHASE   AND   DESCENT.  413 

own  deed  or  agreement,  as  our  author  here  saith.  Like 
law  of  the  state  of  tenant  by  the  curtesie,  tenant  in  dower, 
or  the  like.  But  such  as  attaine  to  lands  by  meere  injury 
or  wrong,  as  by  disseisin,  intrusion,  abatement,  usurpation, 
&c.,  cannot  be  said  to  come  in  by  purchase,  no  more  than 
robbery,  burglarie,  pyracy,  or  the  like,  can  justly  be  termed 
purchase. 

ID.,  1 8,  b.  An  escheat  in  appearance  participates  of  the 
nature  both  of  a  purchase  and  a  descent;  of  the  former  be- 
cause some  act  by  the  lord  is  requisite  to  perfect  his  title, 
and  the  actual  possession  of  the  land  cannot  be  gained  till 
he  enters  or  brings  his  writ  of  escheat ;  of  the  latter,  because 
it  follows  the  nature  of  the  seigniory,  and  is  inheritable  by 
the  same  persons.  But  strictly  speaking,  an  escheat  is  a  title 
neither  by  purchase  nor  descent.  ...  It  would  be  more 
accurate  to  say,  that  the  title  to  land  is  either  by  purchase, 
to  which  the  act  or  agreement  of  the  party  is  essential,  or  by 
mere  act  of  law,  and  under  the  latter  to  consider  first  de- 
scent and  then  escheat,  and  such  other  titles  not  being  by 
descent,  as  yet  like  them  accrue  by  mere  act  of  law. — Har- 
grave's  note. 

2  BL.  COM.,  201.  The  methods  therefore  of  acquiring  on 
the  one  hand,  and  of  losing  on  the  other,  a  title  to  estates  in 
things  real,  are  reduced  by  our  law  to  two:  descent,  where 
the  title  is  vested  in  a  man  by  the  single  operation  of  law ; 
and  purchase,  where  the  title  is  vested  in  him  by  his  own 
act  or  agreement. 

ID.,  '241.  Purchase,  perquisitio,  taken  in  its  largest  and 
most  extensive  sense,  is  thus  defined  by  Littleton  j1  the  pos- 
session of  lands  and  tenements,  which  a  man  hath  by  his 
own  act  or  agreement,  and  not  by  descent  from  any  of  his 
ancestors  or  kindred.  In  this  sense  it  is  contradistinguished 
from  acquisition  by  right  of  blood,  and  includes  every  other 
method  of  coming  to  an  estate,  but  merely  that  by  inheri- 
tance :  wherein  the  title  is  vested  in  a  person,  not  by  his  own 
act  or  agreement,  but  by  the  single  operation  of  law. 

'§12. 


414   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

Purchase,  indeed,  in  its  vulgar  and  confined  acceptation, 
is  applied  only  to  such  acquisitions  of  land  as  are  obtained 
by  way  of  bargain  and  sale  for  money,  or  some  other  valu- 
able consideration.  But  this  falls  far  short  of  the  legal  idea 
of  purchase :  for,  if  I  give  land  freely  to  another,  he  is  in  the 
eye  of  the  law  a  purchaser,  and  falls  within  Littleton's 
definition,  for  he  comes  to  the  estate  by  his  own  agreement ; 
that  is,  he  consents  to  the  gift.  A  man  who  has  his  father's 
estate  settled  upon  him  in  tail,  before  he  was  born,  is  also 
a  purchaser;  for  he  takes  quite  another  estate  than  the  law 
of  descents  would  have  given  him.  Nay,  even  if  the  ancestor 
devises  his  estate  to  his  heir-at-law  by  will,  with  other  limita- 
tions, or  in  any  other  shape  than  the  course  of  descents 
would  direct,  such  heir  shall  take  by  purchase.  But  if  a 
man,  seised  in  fee,  devises  his  whole  estate  to  his  heir-at-law, 
so  that  the  heir  takes  neither  a  greater  nor  a  less  state  by  the 
devise  than  he  would  have  done  without  it,  he  shall  be  ad- 
judged to  take  by  descent,  even  though  it  be  charged  with 
incumbrances,  this  being  for  the  benefit  of  creditors  and 
others  who  have  demands  on  the  estate  of  the  ancestor. 

ID.,  243.  .The  difference,  in  effect,  between  the  acquisition 
of  an  estate  by  descent  and  by  purchase,  consists  principally 
in  these  two  points :  i.  That  by  purchase  the  estate  acquires 
a  new  inheritable  quality,  and  is  descendible  to  the  owner's 
blood  in  general,  and  not  the  blood  only  of  some  particular 
ancestor.  For,  when  a  man  takes  an  estate  by  purchase,  he 
takes  it  not  nt  feudum  paternum  or  maternum,  which  would 
descend  only  to  the  heirs  by  the  father's  or  the  mother's 
side :  but  he  takes  it  ut  feudum  antiquum,  as  a  feud  of  in- 
definite antiquity,  whereby  it  becomes  inheritable  to  his  heirs 
general,  first  of  the  paternal,  and  then  of  the  maternal  line. 
2.  An  estate  taken  by  purchase  will  not  make  the  heir 
answerable  for  the  acts  of  the  ancestor,  as  an  estate  by  de- 
scent will.  For  if  the  ancestor,  by  any  deed,  obligation, 
covenant,  or  the  like,  bindeth  himself  and  his  heirs,  and 
dieth;  this  deed,  obligation,  or  covenant,  shall  be  binding 
upon  the  heir,  so  far  forth  only  as  he  (or  any  other  in  trust 


PURCHASE   AND    DESCENT.  415 

for  him)  had  any  estate  of  inheritance  vested  in  him  by 
descent  from  (or  any  estate  per  auter  vie  coming  to  him  by 
special  occupancy,  as  heir  to)  that  ancestor,  sufficient  to 
answer  the  charge;  whether  he  remains  in  possession,  or 
hath  alienated  it  before  action  •  brought ;  which  sufficient 
estate  is  in  the  law  called  assets:  from  the  French  word, 
assez,  enough.  Therefore  if  a  man  covenants,  for  himself 
and  his  heirs,  to  keep  my  house  in  repair,  I  can  then  (and 
then  only)  compel  his  heir  to  perform  this  covenant,  when 
he  has  an  estate  sufficient  for  this  purpose,  or  assets,  by 
descent  from  the  covenantor:  for  though  the  covenant  de- 
scends to  the  heir,  whether  he  inherits  any  estate  or  no,  it 
lies  dormant,  and  is  not  compulsory,  until  he  has  assets  by 
descent.  This  is  the  legal  signification  of  the  word  perquis- 
itio,  or  purchase ;  and  in  this  sense  it  includes  the  five  follow- 
ing methods  of  acquiring  a  title  to  estates:  i.  Escheat.  2. 
Occupancy.  3.  Prescription.  4.  Forfeiture.  5.  Aliena- 
tion. 


CHAPTER  II. 

FEOFFMENT. 

LIT.,  §  59.  And  it  is  to  be  understood  that  in  a  lease  for 
yeares,  by  deed  or  without  deed,  there  needs  no  livery  of 
seisin  to  be  made  to  the  lessee,  but  he  may  enter  when  he 
will  by  force  of  the  same  lease.  But  of  feoffements  made  in 
the  country,  or  gifts  in  taile,  or  lease  for  terme  of  life;  in 
such  cases  where  a  freehold  shall  passe,  if  it  be  by  deed  or 
without  deed,  it  behoveth  to  have  livery  of  seisin. 

Co.  LIT.,  48,  a.  Traditio,  or  delibcratio  seisinae,  is  a  sol- 
emnitie  that  the  law  requireth  for  the  passing  of  a  freehold 
of  lands  or  tenements  by  deliverie  of  seisin  thereof.  .  . 

And  there  be  two  kinds  of  livery  of  seisin,  viz.,  a  liverie 
in  deed,  and  a  livery  in  law.  ...  A  livery  in  deed  may 
be  done  two  manner  of  wayes.  By  a  solemne  act  and  words ; 
as  by  delivery  of  the  ring  or  haspe  of  the  doore,  or  by 
a  branch  or  twigge  of  a  tree,  or  by  a  turfe  of  the 
land,  and  with  these  or  the  like  words,  the  feoffor  and 
feoffee  both  holding  the  deed  of  feoffment,  and  the  ring  of 
the  doore,  haspe,  branch,  twigge,  or  turfe,  and  the  feoffor 
saying,  Here  I  deliver  you  seisin  and  possession  of  this 
house,  in  the  name  of  all  the  lands  and  tenements  con- 
tained in  this  deed,  according  to  the  forme  and  effect  of 
this  deed ;  or  by  words  without  any  ceremony  or  act ;  as,  the 
feoffor  being  at  the  house  doore,  or  within  the  house,  Here  I 
deliver  you  seisin  and  possession  of  this  house,  in  the  name 
of  seisin  and  possession  of  all  the  lands  and  tenements  con- 
tained in  this  deed;  et  sic  de  similibus:  or,  Enter  you  into 
this  house  or  land,  and  have  and  enjoy  it  according  to^the 
deed :  or,  Enter  into  the  house  or  land,  and  God  give  you 
joy :  or,  I  am  content  you  shall  enjoy  this  land  according  to 
the  deed ;  or  the  like.  For  if  words  may  amount  to  a  liverie 


FEOFFMENT. 

within  the  view,  much  more  it  shall  upon  the  land.  But  if 
a  man  deliver  the  deed  of  feoffment  upon  the  land,  this 
amounts  to  no  livery  of  the  land,  for  it  hath  another  opera- 
tion to  take  effect  as  a  deed ;  but  if  he  deliver  the  deed  upon 
the  land  in  name  of  seisin  of  all  the  lands  contained  in  the 
deed,  this  is  a  good  livery :  and  so  are  other  books  intended 
that  treat  hereof,  that  the  deed  was  delivered  in  name  of 
seisin  of  that  land.  Hereby  it  appeareth  that  the  delivery  of 
any  thing  upon  the  land  in  name  of  seisin  of  that  land, 
though  it  be  nothing  concerning  the  land,  as  a  ring  of  gold, 
is  good,  and  so  hath  it  beene  resolved  by  all  the  judges ;  and 
so  of  the  like. 

48,  b.  A  livery  in  law  is,  when  the  feoffor  saith  to  the 
feoffee,  being  in  the  view  of  the  house  or  land  (I  give  you 
yonder  land  to  you  and  your  heires,  and  goe  enter  into  the 
same,  and  take  possession  thereof  accordingly),  and  the 
feoffee  doth  accordingly  in  the  life  of  the  feoffor  enter, 
this  is  a  good  feoffment,  for  signatio  pro  traditione  habe- 
tur.  .  .  .  But  if  either  feoffor  or  the  feoffee  die  before 
entry  the  livery  is  voyd.  And  livery  within  the  view  is  good 
where  there  is  no  deed  of  feoffment.  And  such  a  liverie  is 
good,  albeit  the  land  lie  in  another  county.  ...  A  man 
maketh  a  charter  of  feoffment  and  delivers  seisin  within  the 
view,  the  feoffee  dares  not  enter  for  feare  of  death,  but 
claimes  the  same,  this  shall  vest  the  freehold  and  inheritance 
in  him,  albeit  by  the  livery  no  estate  passed  to  him,  neither 
in  deed  nor  in  law,  so  as  such  a  claime  shall  serve,  as  well 
to  vest  a  new  estate  and  right  in  the  feoffee,  as  in  the  com- 
mon case  to  revest  an  ancient  estate  and  right  in  the  dis- 
seisee, &c.,  as  shall  be  said  hereafter  more  at  large  in  the 
chapter  of  Continuall  Claime.  And  so  note  a  liverie  in  law 
shall  be  perfected  and  executed  by  an  entry  in  law. 

LIT.,  §  60.  But  if  a  man  letteth  lands  or  tenements  by 
deed  or  without  deed  for  terme  of  yeares,  the  remainder 
over  to  another  for  life,  or  in  taile,  or  in  fee ;  in  this  case  it 
behooveth  that  the  lessor  maketh  liverv  of  seisin  to  the 


41 8   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

lessee  for  yeares,  otherwise  nothing  passeth  to  them  in  the 
remainder,  although  that  the  lessee  enter  into  the  tenements. 
And  if  the  termour  in  this  case  entreth  before  any  liverie  of 
seisin  made  to  him,  then  is  the  freehold  and  also  the  rever- 
sion in  the  lessor.  But  if  he  maketh  liverie  of  seisin  to  the 
lessee,  then  is  the  freehold  together  with  the  fee  to  them  in 
the  remainder,  according  to  the  forme  of  the  grant  and  the 
will  of  the  lessor. 

2  BL.  COM.,  310.  i.  A  feoffment,  feoff  amentum,  is  a  sub- 
stantive derived  from  the  verb,  to  enfeoff,  feoff  are  or  inj 'en- 
dare,  to  give  one  a  feud ;  and  therefore  feoffment  is  properly 
donatio  feudi.  It  is  the  most  ancient  method  of  conveyance, 
the  most  solemn  and  public,  and  therefore  the  most  easily 
remembered  and  proved.  And  it  may  properly  be  defined, 
the  gift  of  any  corporeal  hereditament  to  another.  He  that 
^o  gives,  or  enfeoffs,  is  called  the  feoffor;  and  the  person 
<rnfeoffed  is  denominated  the  feoffee. 

This  is  plainly  derived  from,  or  is  indeed  itself  the  very 
rrode  of,  the  ancient  feodal  donation ;  for  though  it  may  be 
performed  by  the  word  "enfeoff"  or  "grant,"  yet  the  aptest 
word  of  feoffment  is,  "do"  or  "dedi."  And  it  is  still  directed 
and  governed  by  the  same  feodal  rules ;  insomuch  that  the 
principal  rule  relating  to  the  extent  and  effect  of  the  feodal 
grant,  "tenor  est  qui  legein  dat  feudo"  is  in  other  words  be- 
come the  maxim  of  our  law  with  relation  to  feoffments, 
"modus  legeni  dat  donationi."  And,  therefore,  as  in  pure 
feodal  donations,  the  lord,  from  whom  the  feud  moved, 
must  expressly  limit  and  declare  the  continuance  or  quantity 
of  estate  which  he  meant  to  confer,  "ne  quis  plus  donasse 
praesumatur  qi'.aiu  in  donatione  expresserit;"  so,  if  one 
grants  by  feoffment  lands  or  tenements  to  another,  and  lim- 
its or  expresses  no  estate,  the  grantee  (due  ceremonies  of  law 
being  performed)  hath  barely  an  estate  for  life.  For  as  the 
personal  abilities  of  the  feoffee  were  originally  presumed  to 
be  the  immediate  or  principal  inducements  to  the  feoffment, 
the  feoffee's  estate  ought  to  be  confined  to  his  person,  and 


FEOFFMENT.  419 

subsist  only  for  his  life;  unless  the  feoffor,  by  express  pro- 
vision in  the  creation  and  constitution  of  the  estate,  hath 
given  it  a  longer  continuance.  These  express  provisions  are 
indeed  generally  made ;  for  this  was  for  ages  the  only  con- 
veyance whereby  our  ancestors  were  wont  to  create  an. 
estate  in  fee-simple,  by  giving  the  land  to  the  feoffee,  to  hold 
to  him  and  his  heirs  forever;  though  it  serves  equally  well 
to  convey  any  other  estate  or  freehold. 

But  by  the  mere  words  of  the  deed  the  feoffment  is  by 
no  means  perfected :  there  remains  a  very  material  ceremony 
to  be  performed,  called  livery  of  seisin;  without  which  the 
feoffee  has  but  a  mere  estate  at  will.  This  livery  of  seisin 
is  no  other  than  the  pure  feodal  investiture,  or  delivery  of 
corporeal  possession  of  the  land  or  tenement ;  which  was 
held  absolutely  necessary  to  complete  the  donation.  "Nam 
feudum  sine  investitura  nullo  modo  constitui  potuit"  and 
an  estate  was  then  only  perfect,  when,  as  the  author  of  Fleta 
expresses  it  in  our  law,  "fit  juris  et  seisince  confunctio."1 

In.,  316.  A  feoffment  has  of  late  been  generally  resorted 
to  in  practice  rather  for  its  peculiar  powers  and  effects  than 
as  a  simple  mode  of  assurance  from  one  person  to  another. 
Thus,  a  feoffment  by  a  particular  tenant,  until  recently,  de- 
stroyed the  contingent  remainders  depending  on  the  par- 
ticular estate,  and,  if  made  by  a  tenant  in  tail  in  possession, 
discontinued  the  estate- tail ;  and  at  one  time  it  seemed  quite 
settled  that  a  feoffment  might  be  employed  to  convey  a  fee 
to  the  feoffee  by  disseisin,  whatever  might  have  been  the 
estate  of  the  feoffor,  provided  he  had  possession  of  the  lands 
cnfeoffed.  But  this  doctrine  has  for  some  time  been  greatly 
shaken ;  and  it  has  been  considered  that  a  feoffment  had  no- 
longer  this  effect.  .  .  .  By  Stat.  8  and  9  Viet.,  c.  106, 
§  4,  a  feoffment  made  after  the  ist  of  October,  1845,  shall 
not  have  any  tortious  operation,  and  is  now  to  be  ranked 
among  what  are  called  innocent  conveyances. — Stewart's 
note. 

>L.  3,  c.  14,  §5. 


42O   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

DIGBY,  HIST.  REAL  PROP.,  Ch.  III.,  §  12  (2).  In  order 
to.  acquire  possessio  two  elements  are  necessary:  I.  The 
consciousness  of  actual  or  possible  physical  control  of  the 
thing  which  is  the  subject  of  acquisition.  2.  The  animus 
sibi  habendi.  The  requisites  for  the  acquisition  of  possessio 
were  to  this  extent  common  with  the  requisites  for  acquir- 
ing property  by  traditio,  or  delivery;  and  the  application  of 
these  rules  gave  rise  to  the  feudal  notion  of  investiture — the 
clothing  the  donee  with  the  actual  possession  of  the  land  the 
subject  of  the  grant. 

Since,  as  has  been  seen,  freehold  interests  were  formerly 
the  only  interests  in  land  known  to  the  law,  a  grant  of 
land  is  synonymous  with  a  grant  of  a  freehold  interest  in 
land,  and  the  doctrines  of  Roman  law  as  to  conveying  things 
movable  by  traditio,  and  things  immovable  by  allowing  the 
donee  to  enter  on  the  vacant  possession,  gave  rise  to  the 
principle  that  for  passing  a  freehold  interest  in  lands  a  cere- 
mony was  necessary  by  which  the  possession  of  the  land 
itself  should  be  given  to  the  donee.  This  was  livery,  or  de- 
livery, of  the  seisin  or  possession  of  the  land,  and  was  ef- 
fected either  by  the  donor  himself  or  his  deputy.  What  did 
and  what  did  not  amount  to  "livery  of  seisin"  now  becomes 
a  curious  question.  Speaking  generally,  it  must  be  the  de- 
livery of  something,  such  as  a  clod  of  earth  or  a  twig,  on 
the  land  in  the  name  of  the  whole,  or  it  was  sufficient  if  the 
two  parties  were  actually  present  on  the  land  and  the  one 
by  word  or  act  gave  possession  to  the  other.  It  was  even 
effectual  for  the  donor  to  bring  the  donee  within  sight  of  the 
land  and  to  give  him  authority  to  enter,  provided  this  were 
followed  by  the  entry  of  the  donee  during  the  lifetime  of  the 
donor.  Great  importance  was  attached  to  the  notoriety  of 
the  transaction.  That  all  the  neighbors  might  know  that  A. 
was  tenant  to  B.  from  the  fact  that  open  livery  of  seisin  had 
been  made  to  him,  was  of  the  utmost  importance  to  B.  in 
order  to  protect  and  to  enable  him  to  assert  his  rights  as 
lord.  For  in  case  of  dispute  as  to  the  title  to  the  lands,  or 
the  right  to  services,  aids  or  reliefs,  the  fact  of  this  open 


FEOFFMENT.  421 

and  notorious  livery  of  seisin  enabled  the  lord  to  appeal  to 
the  tribunal  before  which,  since  the  reforms  of  Henry  II., 
suits  relating  to  land  were  commonly  decided — the  verdict 
of  twelve  legates  homines  de  vicineto,  who  would  know 
themselves  or  have  heard  from  their  fathers  the  truth  of  the 
matter. 

4  KENT  COM.,  480.  Nothing  can  be  more  concise,  and 
more  perfect  in  its  parts,  than  the  ancient  charter  of  feoff- 
ment.  It  resembles  the  short  and  plain  forms  now  com- 
monly used  in  the  New  England  States.  .  .  . 

The  feoffment  operated  upon  the  possession  without  any 
regard  to  the  estate  or  interest  of  the  feoffor ;  and  though 
he  had  no  more  than  a  naked,  or  even  tortious  possession, 
yet,  if  the  feoffor  had  possession,  the  feoffment  had  the 
transcendant  efficacy  of  passing  a  fee  by  reason  of  the  liv- 
ery, and  of  working  an  actual  disseisin  of  the  freehold.  It 
cleared  away  all  defeasible  titles,  devested  estates,  destroyed 
contingent  remainders,  extinguished  powers,  and  barred  the 
feoffor  from  all  future  right,  and  possibility  of  right,  to  the 
land,  and  vested  an  estate  of  freehold  in  the  feoffee.  In 
this  respect  the  feoffment  differed  essentially  from  a  fine,  or 
common  recovery ;  for  the  conusor  in  the  fine,  and  the  ten- 
ant to  the  prcBcipe,  must  be  seised  of  the  freehold,  or  of  an 
estate  in  fee,  or  for  life,  otherwise  the  fine  or  recovery  may 
be  avoided. 

STAT.  8  &  9  VICT.,  c.  106,  §  4.  A  feoffment  made  after 
the  .  .  .  first  day  of  October,  1845,  shall  not  have  any 
lortious  operation. 

N.  Y.  REAL  PROP.  LAW,  §  206.  The  conveyance  of  real  prop- 
erty, by  feoffment,  with  livery  of  seisin,  has  been  abolished. 

§210.  .  .  .  A  greater  estate  or  interest  does  not  pass  by 
any  grant  or  conveyance  than  the  grantor  possessed  or  could 
lawfully  convey  at  the  time  of  the  delivery  of  the  deed.  .  .  - 


CHAPTER  III. 

• 
FINE  AND  RECOVERY. 

2  BL.  COM.,  348-357.  A  fine  is  sometimes  said  to  be  a 
f eoffment  of  record ;  though  it  might  with  more  accuracy  be 
called  an  acknowledgment  of  a  feoffment  on  record.  By 
which  is  to  be  understood,  that  it  has  at  least  the  same  force 
and  effect  with  a  feoffment,  in  the.  conveying  and  assuring 
of  lands :  though  it  ns  one  of  those  methods  of  transferring 
estates  of  freehold  by  the  common  law,  in  which  livery  of 
.seisin  is  not  necessary  to  be  actually  given ;  the  supposition 
and  acknowledgment  thereof  in  a  court  of  record,  however 
fictitious,  inducing  an  equal  notoriety.  But,  more  particu- 
larly, a  fine  may  be  described  to  be  an  amicable  composition 
or  agreement  of  a  suit,  either  actual  or  fictitious,  by  leave  of 
the  king  or  his  justices :  whereby  the  lands  in  question  be- 
come, or  are  acknowledged  to  be,  the  right  of  one  of  the 
parties.  In  its  original  it  was  founded  on  an  actual  suit, 
commenced  at  law  for  recovery  of  the  possession  of  land  or 
other  hereditaments ;  and  the  possession  thus  gained  by 
such  composition  was  found  to  be  so  sure  and  effectual  that 
fictitious  actions  were,  and  continue  to  be,  every  day  com- 
menced, for  the  sake  of  obtaining  the  same  security. 

A  fine  is  so  called  because  it  puts  an  end,  not  only  to  the 
s'uit  thus  commenced,  but  also  to  all  other  suits  and  contro- 
versies concerning  the  same  matter.  .  .  .  Fines  indeed 
are  of  equal  antiquity  with  the  first  rudiments  of  the  law  it- 
self ;  are  spoken  of  by  Glanvil1  and  Bracton2  in  the  reigns  of 
Hen.  II.  and  Hen.  III.  as  things  then  well  known  and  long 
established ;  and  instances  have  been  produced  of  them  even 
prior  to  the  Norman  invasion.3  So  that  the  statute  18  Edw. 

1  L.  8,  c.  I.  *  L.  5,  t.  5,  c.  28.  sPlowd.  369. 


FINE   AND    RECOVERY.  423 

I.,  called  modus  levandi  fines,  did  not  give  them  original,  but 
only  declared  and  regulated  the  manner  in  which  they 
should  be  levied  or  carried  on.  And  that  is  as  follows : 

1.  The  party  to  whom  the  land  is  to  be  conveyed  or  as- 
sured, commences  an  action  or  suit  at  law  against  the  other, 
generally  an  action  of  covenant,  by  suing  out  a  writ  of  prae- 
cipe,  called  a  writ  of  covenant :  the  foundation  of  which  is  a 
supposed  agreement  or  covenant,  that  the  one  shall  convey 
the  lands  to  the  other ;  on  the  breach  of  which  agreement  the 
action  is  brought.     .     .     .     The  suit  being  thus  commenced, 
then  follows, 

2.  The  licentia  concordandi,  or  leave  to  agree  the  suit. 
For,  as  soon  as  the  action  is  brought,  the  defendant,  know- 
ing himself  to  be  in  the  wrong,  is  supposed  to  make  over- 
tures of  peace  and  accommodation  to  the  plaintiff.     Who, 
accepting  them,  but  having,  upon  suing  out  the  writ,  given 
pledges  to  prosecute  his  suit,  which  he  endangers  if  he  now 
deserts  it  without  license,  he  therefore  applies  to  the  court 
for  leave  to  make  the  matter  up.     This  leave    is    readily 
granted.     .     .     . 

3.  Next  comes  the  concord,  or    agreement    itself,    after 
leave  obtained  from  the  court :  which  is  usually  an  acknowl- 
edgment from  the  deforciants  (or  those  who  keep  the  other 
out  of  possession)  that  the  lands  in  question  are  the  right  of 
the  complainant.    And  from  this  acknowledgment,  or  recog- 
nition of  right,  the  party  levying  the  fine  is  called  the  cog- 
nisor,  and  he  to  whom  it  is  levied  the  cognizee.     This  ac- 
knowledgment must  be  made  either  openly  in  the  court  of 
common  pleas,  or  before  the  lord  chief -justice  of  that  court ; 
or  else  before  one  of  the  judges  of  that  court,  or  two  or  more 
commissioners  in  the  country,  empowered  by  a  special  au- 
thority called  a  writ  of  dedimus  potestatem,  which  judges 
and  commissioners  are  bound,  by  statute  18  Edw.  I.  st.  4, 
to  take  care  that  the  cognizors  be  of  full  age,  sound  memory, 
and  out  of  prison.     If  there  be  any  feme-covert  among  the 
cognizors,  she  is  privately  examined  whether  she  does  it  will- 
ingly and  freely,  or  by  compulsion  of  her  husband. 


424   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

By  these  acts  all  the  essential  parts  of  a  fine  are  com- 
pleted :  and  if  the  cognizor  dies  the  next  moment  after  the 
fine  is  acknowledged,  provided  it  be  subsequent  to  the  day 
on  which  the  writ  is  made  returnable,  still  the  fine  shall  be 
carried  on  in  all  its  remaining  parts :  of  which  the  next  is, 

4.  The  note  of  the  fine ;  which  is  only  an  abstract  of  the 
writ  of  covenant,  and  the  concord ;  naming  the  parties,  the 
parcels  of  land,  and  the  agreement.    This  must  be  enrolled 
of  record  in  the  proper  office,  by  direction  of  the  statute  5 
Hen.  IV.  c.  14. 

5.  The  fifth  part  is  the  footoi.  the  fine,  or  conclusion  of  it : 
which  includes  the  whole  matter,  reciting  the  parties,  day, 
year,  and  place,  and  before  whom  it  was  acknowledged  or 
levied.     Of  this  there  are  indentures  made,  or  engrossed, 
at  the  chirographer's  office,  and  delivered  to  the  cognizor 
and  the  cognizee,  usually  beginning  thus  "hcec  est  finalis 
concordia,  this  is  the  final  agreement,"  and  then  reciting  the 
whole  proceeding  at  length.    And  thus  the  fine  is  completely 

levied  at  common  law. 

******* 

We  are  next  to  consider  the  force  and  effect  of  a  fine. 
These  principally  depend,  at  this  day,  on  the  common  law, 
and  the  two  statutes  4  Hen.  VII.  c.  24,  and  32  Hen.  VIII.  c. 
36.  The  antient  common  law,  with  respect  to  this  point,  is 
very  forcibly  declared  by  the  statute  18  Edw.  I.,  in  these 
words :  "And  the  reason  why  such  solemnity  is  required  in 
the  passing  of  a  fine  is  this;  because  the  fine  is  so  high  a 
bar,  and  of  so  great  force,  and  of  a  nature  so  powerful  in 
itself,  that  it  precludes  not  only  those  which  are  parties  and 
privies  to  the  fine,  and  their  heirs,  but  all  other  persons  in 
the  world,  who  are  of  full  age,  out  of  prison,  of  sound  mem- 
ory, and  within  the  four  seas  the  day  of  the  fine  levied ;  un- 
less they  put  in  their  claim  on  the  foot  of  the  fine  within  a 
year  and  a  day."  But  this  doctrine,  of  barring  the  right  by 
non-claim,  was  abolished  for  a  time  by  a  statute  made  in 
34  Edw.  III.  c.  16,  which  admitted  persons  to  claim,  and 
falsify  a  fine,  at  any  indefinite  distance ;  whereby,  as  Sir  Ed- 


FINE    AND    RECOVERY.  425 

ward  Coke  observes,  great  contention  arose,  and  few  men 
were  sure  of  their  possessions,  till  the  parliament  held  4 
Hen.  VII.  reformed  that  mischief,  and  excellently  moderated 
between  the  latitude  given  by  the  statute  and  the  rigor  of  the 
common  law.  For  the  statute  then  made  restored  the  doc- 
trine of  non-claim,  but  extended  the  time  of  claim.  So  that 
now,  by  that  statute,  the  right  of  all  strangers  whatsoever  is 
bound,  unless  they  make  claim,  by  way  of  action  or  lawful 
entry,  not  within  one  year  and  a  day,  as  by  the  common  law, 
but  within  five  years,  after  proclamations  made :  except 
feme-coverts,  infants,  prisoners,  persons  beyond  the  seas, 
and  such  as  are  not  of  whole  mind ;  who  have  five  years  al- 
lowed to  them  and  their  heirs,  after  the  death  of  their  hus- 
bands, their  attaining  full  age,  recovering  their  liberty,  re- 
turning into  England,  or  being  restored  to  their  right 

mind. 

******* 

But,  in  order  to  make  a  fine  of  any  avail  at  all,  it  is  neces- 
sary that  the  parties  should  have  some  interest  or  estate  in 
the  lands  to  be  affected  by  it.  Else  it  were  possible  that  two 
strangers,  by  a  mere  confederacy,  might  without  any  risk 
defraud  the  owners  by  levying  fines  of  their  lands ;  for  if  the 
attempt  be  discovered,  they  can  be  no  sufferers,  but  must 
only  remain  in  statu  quo:  whereas  if  a  tenant  for  life  levies 
a  fine,  it  is  an  absolute  forfeiture  of  his  estate  to  the  re- 
mainder-man or  reversioner,  if  claimed  in  proper  time.  It 
is  not,  therefore,  to  be  supposed  that  such  tenants  will  fre- 
quently run  so  great  a  hazard ;  but  if  they  do,  and  the  claim 
is  not  duly  made  within  five  years  after  their  respective 
terms  expire,  the  estate  is  forever  barred  by  it.  Yet  where 
a  stranger,  whose  presumption  cannot  be  thus  punished, 
officiously  interferes  in  an  estate  which  in  nowise  belongs  to 
him,  his  fine  is  of  no  effect ;  and  may  at  any  time  be  set  aside 
C unless  by  such  as  are  parties  or  privies  thereunto)  by 
pleading  that  "partes  finis  nihil  habuerunt."  And,  even  if 
a  tenant  for  years,  who  hath  only  a  chattel  interest,  and  no 
freehold  in  the  land,  levies  a  fine,  it  operates  nothing,  but  is 


426   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

liable  to  be  defeated  by  the  same  plea.  Wherefore  when  a 
lessee  for  years  is  disposed  to  levy  a  fine,  it  is  usual  for  him 
to  make  a  feoffment  first,  to  displace  the  estate  of  the  rever- 
sioner  and  create  a  new  freehold  by  disseisin.  And  thus 
much  for  the  conveyance  or  assurance  by  fine:  which  not 
only,  like  other  conveyances,  binds  the  grantor  himself,  and 
his  heirs;  but  also  all  mankind,  whether  concerned  in  the 
transfer  or  no,  if  they  fail  to  put  in  their  claims  within  the 
time  allotted  by  law. 

ID.,  357-362.  The  fourth  species  of  assurance,  by  matter 
of  record,  is  a  common  recovery.  Concerning  the  original 
of  which  it  was  formerly  observed  that  common  recoveries 
were  invented  by  the  ecclesiastics  to  elude  the  statutes  of 
mortmain;  and  afterward  encouraged  by  the  finesse  of  the 
courts  of  law  in  12  Edw.  IV.  in  order  to  put  an  end  to  all  fet- 
tered inheritances,  and  bar  not  only  estates-tail,  but  also  all 
remainders  and  reversions  expectant  thereon.  I  am  now, 
therefore,  only  to  consider,  first,  the  nature  of  a  common 
recovery ;  and,  secondly,  its  force  and  effect. 

i .  And,  first,  the  nature  of  it ;  or  what  a  common  recovery 
is.  A  common  recovery  is  so  far  like  a  fine,  that  it  is  a  suit  of 
action,  either  actual  or  fictitious:  and  in  it  the  lands  are 
recovered  against  the  tenant  of  the  freehold;  which  recov- 
ery, being  a  supposed  adjudication  of  the  right,  binds  all 
persons,  and  vests  a  free  and  absolute  fee-simple  in  the  re- 
coveror.  A  recovery,  therefore,  being  in  the  nature  of  an 
action  at  law,  not  immediately  compromised  like  a  fine,  but 
carried  on  through  every  regular  stage  of  proceeding,  I  am 
greatly  apprehensive  that  its  form  and  method  will  not  be 
easily  understood  by  the  student  who  is  not  yet  acquainted 
with  the  course  of  judicial  proceedings;  which  cannot  be 
thoroughly  explained  till  treated  of  at  large  in  the  third 
book  of  these  commentaries.  However,  I  shall  endeavor  to 
state  its  nature  and  progress,  as  clearly  and  concisely  as  I 
can ;  avoiding,  as  far  as  possible,  all  technical  terms  and 
phrases  not  hitherto  interpreted. 

Let  us,  in  the  first  place,  suppose  David  Edwards  to  be 


FINE   AND    RECOVERY.  427 

tenant  of  the  freehold,  and  desirous  to  suffer  a  common  re- 
covery, in  order  to  bar  all  entails,  remainders,  and  rever- 
sions, and  to  convey  the  same  in  fee-simple  to  Francis  Gold- 
ing.  To  effect  this,  Golding  is  to  bring  an  action  against 
him  for  the  lands ;  and  he  accordingly  sues  out  a  writ,  called 
a  proecipe  quod  reddat,  because  those  were  its  initial  or  most 
operative  words  when  the  law  proceedings  were  in  Latin. 
In  this  writ  the  demandant  Golding  alleges  that  the  defend- 
ant Edwards  (here  called  the  tenant)  has  no  legal  title  to 
the  land;  but  that  he  came  into  possession  of  it  after  one 
Hugh  Hunt  had  turned  the  demandant  out  of  it.  The  sub- 
sequent proceedings  are  made  up  into  a  record  or  recovery- 
roll,  in  which  the  writ  and  complaint  of  the  demandant  are 
first  recited :  whereupon  the  tenant  appears,  and  calls  upon 
one  Jacob  Morland,  who  is  supposed,  at  the  original  pur- 
chase, to  have  warranted  the  title  to  the  tenant ;  and  there- 
upon he  prays,  that  the  said  Jacob  Morland  may  be  called 
in  to  defend  the  title  which  he  so  warranted.  This  is  called 
the  voucher,  vocatio,  or  calling  of  Jacob  Morland  to  war- 
ranty ;  and  Morland  is  called  the  vouchee.  Upon  this,  Jacob 
Morland,  the  vouchee,  appears,  is  impleaded,  and  defends 
the  title.  Whereupon  Golding,  the  demandant,  desires 
leave  of  the  court  to  impart,  or  confer  with  the  vouchee  in 
private:  which  is  (as  usual)  allowed  him.  And  soon  after- 
ward the  demandant  Golding  returns  to  court,  but  Morland 
the  vouchee  disappears,  or  makes  default.  Whereupon 
judgment  is  given  for  the  demandant,  Golding,  now  called 
the  recoveror,  to  recover  the  lands  in  question,  against  the 
tenant,  Edwards,  who  is  now  the  recoveree;  and  Edwards 
has  judgment  to  recover  of  Jacob  Morland  lands  of  equal 
value,  in  recompense  for  the  lands  so  warranted  by  him,  and 
now  lost  by  his  default ;  which  is  agreeable  to  the  doctrine 
of  warranty  mentioned  in  the  preceding  chapter.  This  is 
called  the  recompense,  or  recovery  in  value.  But  Jacob 
Morland  having  no  lands  of  his  own,  being  usually  the  crier 
of  the  court  (who,  from  being  frequently  thus  vouched,  is 
called  the  common  vouchee),  it  is  plain  that  Edwards  has 


428   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

only  a  nominal  recompense  for  the  land  so  recovered  against 
him  by  Golding;  which  lands  are  now  absolutely  vested  in 
the  said  recoveror  by  judgment  of  law,  and  seisin  thereof  is 
delivered  by  the  sheriff  of  the  county.  So  that  this  collu- 
sive recovery  operates  merely  in  the  nature  of  a  conveyance 
in  fee-simple,  from  Edwards  the  tenant  in  tail,  to  Golding, 
the  purchaser.  .  .  . 

This  supposed  recompense  in  value  is  the  reason  why  the 
issue  in  tail  is  held  to  be  barred  by  a  common  recovery.  For 
if  the  recoveree  should  obtain  a  recompense  in  lands  from 
the  common  vouchee  (which  there  is  a  possibility  in  con- 
templation of  law,  though  a  very  improbable  one,  of  his  do- 
ing), these  lands  would  supply  the  place  of  those  so  recov- 
ered from  him  by  collusion,  and  would  descend  to  the  issue 
in  tail.  .  .  . 

To  such  awkward  shifts,  such  subtle  refinements,  and 
such  strange  reasoning  were  our  ancestors  obliged  to  have 
recourse,  in  order  to  get  the  better  of  that  stubborn  statute 
de  donis.  The  design  for  which  these  contrivances  were  set 
on  foot  were  certainly  laudable ;  the  unriveting  the  fetters  of 
estates-tail,  which  were  attended  with  a  legion  of  mischiefs 
to  the  commonwealth:  but,  while  we  applaud  the  end,  we 
cannot  admire  the  means.  .  .  . 

2.  The  force  and  effect  of  common  recoveries  may  appear, 
from  what  has  been  said,  to  be  an  absolute  bar  not  only  of 
all  estates-tail,  but  of  remainders  and  reversions  expectant 
on  the  determination  of  such  estates.  So  that  a  tenant  in 
tail  may,  by  this  method  of  assurance,  convey  the  lands  held 
in  tail  to  the  recoveror,  his  heirs  and  assigns,  absolutely  free 
and  discharged  of  all  conditions  and  limitations  in  tail,  and 
of  all  remainders  and  reversions.  ...  In  all  recoveries 
it  is  necessary  that  the  recoveree,  or  tenant  to  the  proecipe, 
as  he  is  usually  called,  be  actually  seised  of  the  freehold,  else 
the  recovery  is  void.  For  all  actions,  to  recover  the  seisin 
of  lands,  must  be  brought  against  the  actual  tenant  of  the 
freehold,  else  the  suit  will  lose  its  effect ;  since  the  freehold 
cannot  be  recovered  of  him  who  has  it  not. 


FINE    AND    RECOVERY.  429 

4  KENT.  COM.,  497.  Of  Fines  and  Recoveries. — Alienation 
by  matter  of  record,  as  by  fines  and  common  recoveries, 
makes  a  distinguished  figure  in  the  English  code  of  the  com- 
mon assurances  of  the  kingdom.  But  they  have  not  been  in 
much  use  in  any  part  of  this  country,  and  probably  were 
never  adopted,  or  known  in  practice  in  most  of  the  States. 
The  conveyance  by  common  recovery  was  in  use  in  Penn- 
sylvania, Delaware  and  Maryland,  before  the  American 
revolution ;  but  it  must  have  become  obsolete  with  the  disuse 
of  estates  tail.  Fines  have  been  occasionally  levied  in  New 
York  for  the  sake  of  barring  claims ;  but  by  the  New  York 
Revised  Statutes1  fines  and  common  recoveries  are  now 
abolished.  .  .  .  The  conveyance  by  fine,  as  a  matter  of 
record,  transacted  in  one  of  the  highest  courts  of  common 
law,  has  some  great  advantages,  and  merits  a  more  serious 
consideration.  Its  force  and  effect  are  very  great ;  and  great 
solemnity  is  required  in  passing  it,  because,  said  the  statute  of 
1 8  Edw.  I.,  "the  fine  is  so  high  a  bar,  and  of  so  great  force, 
and  of  a  nature  so  powerful  in  itself,  that  it  precludes  not 
only  those  who  are  parties  and  privies  to  the  fine,  and  their 
heirs,  but  all  other  persons  in  the  world,  who  are  of  full  age, 
out  of  prison,  of  sound  memory,  and  within  the  four  seas, 
the  day  of  the  fine  levied,  unless  they  put  in  their  claim  within 
a  year  and  a  day."  This  bar  by  non-claim  was,  afterwards, 
by  the  statute  of  4  Hen.  VII.,  extended  to  five  years.  These 
statutes,  and  this  bar  of  non-claim  after  five  years,  were  re- 
enacted  in  New  York,  and  continued  in  force  until  January, 
1830;  and  common  recoveries  were  equally  recognized  by 
statute  as  a  valid  mode  of  conveyance  down  to  this  last- 
mentioned  period.  Such  a  formal,  solemn,  and  public  mode 
of  conveyance,  with  such  a  short  bar  by  non-claim,  was  re- 
sorted to  in  special  cases,  where  title  had  become  complex, 
and  the  property  was  of  great  value,  and  costly  improve- 
ments were  in  immediate  contemplation. 
1  Vol.  II.,  343,  sec.  24. 


CHAPTER  IV. 

GRANT  AND  ATTORNMENT. 

Co.  LIT.,  172,  a.  "Grant,"  concessio,  is  in  the  common 
law  a  conveyance  of  a  thing  that  lies  in  grant  and  not  in  liv- 
ery, which  cannot  passe  without  deed ;  as  advowsons,  ser- 
vices, rents,  commons,  reversions,  and  such  like.  .  .  . 

171,  b.  "Fait,"  Factum,  Anglice  a  deed,  and  signifieth  in 
the  common  law,  an  instrument  consisting  of  three  things, 
viz.,  writing,  sealing,  and  delivery,  comprehending  a  bar- 
gaine  or  contract  between  party  and  party,  man  or  woman. 
It  is  called  of  the  civilians  literarum  obligatio. 

49,  a.  .  .  .  So  to  conclude  this  point ;  of  freehold  and 
inheritances  some  be  corporeall,  as  houses,  &c.,  lands,  &c. ; 
these  are  to  passe  by  liverie  of  seisin,  by  deed  or  without 
deed ;  some  be  incorporeall,  as  advowsons,  rents,  commons, 
estovers,  &c. ;  these  cannot  passe  without  deed,  but  without 
any  liverie.  And  the  law  hath  provided  the  deed  in  place  or 
stead  of  a  livery.  And  so  it  is  if  a  man  make  a  lease,  and 
by  deed  grant  the  reversion  in  fee,  here  the  freehold  with 
attornement  of  the  lessee  by  the  deed  doth  passe,  which  is 
in  lieu  of  the  livery.  See  Bract.,  lib.  2,  cap.  18.  .  .  . 

LIT.,  §  551.  Attornement  is,  as  if  there  bee  lord  and  ten- 
ant, and  the  lord  will  grant  by  his  deed  the  services  of  his 
tenant  to  another  for  terme  of  yeares,  or  for  terme  of  life,  or 
in  taile,  or  in  fee,  the  tenant  must  attorne  to  the  grantee  in 
the  life  of  the  grantor,  by  force  and  vertue  of  the  grant,  or 
otherwise  the  grant  is  void.  And  attornement  is  no  other  in 
effect,  but  when  the  tenant  hath  heard  of  the  grant  made  by 
his  lord,  that  the  same  tenant  do  agree  by  word  to  the  said 
grant,  as  to  say  to  the  grantee,  I  agree  to  the  grant  made 
to  you,  &c.,  or  I  am  well  content  with  the  grant  made  to 


GRANT    AND    ATTORNMENT.  43! 

you ;  but  the  most  common  attornement  is  to  say :  Sir,  I  at- 
torne  to  you  by  force  of  the  said  grant,  or  I  become  your 
tenant,  &c.,  or  to  deliver  to  the  grantee  a  pennie,  or  halfe- 
pennie,  or  a  farthing,  by  way  of  attornement. 

§  567.  Also,  if  a  man  letteth  tenements  for  terme  of 
yeares,  by  force  of  which  lease  the  lessee  is  seised,  and  after 
the  lessor  by  his  deed  grant  the  reversion  to  another  for 
terme  of  life,  or  in  taile,  or  in  fee,  it  behoveth  in  such  case 
that  the  tenant  for  yeares  attorne,  or  otherwise  nothing  shall 
passe  to  such  grantee  by  such  deed.  And  if  in  this  case  the 
tenaunt  for  yeares  attorne  to  the  grantee,  then  the  freehold 
shall  presently  passe  to  the  grantee  by  such  attornement 
without  any  liverie  of  seisin,  &c.,  because  if  any  liverie  of 
seisin.  &c.,  should  be  or  were  needfull  to  bee  made,  then  the 
tenant  for  yeares  should  be  at  the  time  of  the  livery  of  seisin 
ousted  of  his  possession,  which  should  bee  against  reason, 
&c. 

§  568.  Also,  if  tenements  be  letten  to  a  man  for  terme  of 
life,  or  given  in  taile,  saving  the  reversion,  &c.,  if  hee  in  the 
reversion  in  such  case  grant  the  reversion  to  another  by  his 
deed,  it  behooveth  that  the  tenant  of  the  land  attorne  to  the 
grantee  in  the  life  of  the  grantor,  or  otherwise  the  grant  is 
voyd. 

§  569.  In  the  same  manner  is  it,  if  land  be  granted  in  taile, 
or  let  to  a  man  for  terme  of  life,  the  remainder  to  another  in 
fee,  if  he  in  the  remainder  will  graunt  this  remainder  to  an- 
other, &c.,  if  the  tenant  of  the  land  attorne  in  the  life  of  the 
grantor,  then  the  grant  of  such  a  remainder  is  good,  or 
otherwise  not. 

§  570.  P.  12.  Edw.  4.  It  is  there  holden  by  the  whole 
court,  that  tenant  in  taile  shall  not  be  compelled  to  attorne, 
but  if  he  will  attorne  gratis,  it  is  good  enough. 

Co.  LIT.,  316,  b.  This  is  added  to  Littleton,  and  there- 
fore, though  it  be  good  law,  and  the  booke  truly  cited,  yet  I 
passe  it  over. 

ID.,  309,  a.     "Attornment"  is  an  agreement  of  the  ten- 


432   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

ant  to  the  grant  of  the  seigniorie,  or  of  a  rent,  or  of  the 
donee  in  tayle,  or  tenant  for  life  or  yeeres,  to  a  grant  of  a 
reversion  or  remainder  made  to  another.  It  is  an  ancient 
word  of  art,  and  in. the  common  law  signifieth  a  torning  or 
attorning  from  one  to  another.  Wee  use  also  attornamen- 
tum  as  a  Latine  word,  and  attornare  to  attorne.  And  so 
Bracton  useth  it.  ... 

And  the  reason  why  an  attornment  is  requisite,  is  yeelded 
in  old  bookes  to  be,  Si  dominus  attornare  possit  servitium 
tenentis  contra  voluntatem  tenentis,  tale  sequeretur  incon- 
veniens,  quod  possit  eum  subjugare  capitali  inimico  suo,  et 
per  quod  teneretur  sact -amentum  fidelitatis  facere  ei  qui  eum 
damnificare  intenderet. 

309,  a,  b.  "II  covient  que  le  tenant  attorna  al  grantee  en  la 
vie  del  grantor,  &c."  And  so  must  he  also  in  the  life  of  the 
grantee ;  and  this  is  understood  of  a  grant  by  deed.  And  the 
reason  hereof  is,  for  that  every  grant  must  take  effect  as 
to  the  substance  thereof  in  the  life  both  of  the  grantor  and 
the  grantee.  And  in  this  case,  if  the  grantor  dieth  before 
attornement,  the  seigniorie,  rent,  reversion  or  remainder 
descend  to  his  heire ;  and  therefore  after  his  decease  the  at- 
tornement commeth  too  late :  so  likewise  if  the  grantee  dieth 
before  attornement,  an  attornement  to  the  heire  is  void,  for 
nothing  descended  to  him ;  and  if  he  should  take,  he  should 
take  it  as  a  purchaser,  where  the  heires  were  added  but  as 
words  of  limitation  of  the  estate,  and  not  to  take  as  pur- 
chasers. .  .  . 

A  grant  to  the  king,  or  by  the  king  to  another,  is  good 
without  attornement,  by  his  prerogative. 

ID.,  271,  b.  .  .  .  A  grant,  in  the  original  signification 
of  the  word,  is  a  conveyance  or  transfer  of  an  incorporeal 
hereditament.  As  livery  of  seisin  could  not  be  had  of  incor- 
poreal hereditaments,  the  transfer  of  them  was  always  made 
by  writing,  in  order  to  produce  that  notoriety  in  the  transfer 
of  them  which  was  produced  in  the  transfer  of  corporeal 
hereditaments,  by  delivery  of  the  possession.  But,  except 


GRANT    AND    ATTORNMENT.  433 

that  a  feoffment  was  used  for  the  transfer  of  corporeal 
hereditaments,  and  a  grant  was  used  for  the  transfer  of  in- 
corporeal hereditaments,  a  feoffment  and  a  grant  did  not 
materially  differ.  Such  was  the  original  distinction  between 
a  feoffment  and  a  grant.  But,  from  this  real  difference  in 
their  subject  matter,  a  difference  was  supposed  to  exist  in 
their  operation.  A  feoffment  visibly  operated  on  the  posses- 
sion; a  grant  could  only  operate  on  the  right  of  the  party 
conveying.  Now,  as  possession  and  freehold  were  synony- 
mous terms,  no  person  being  considered  to  have  the  posses- 
sion of  the  lands  but  he  who  had  himself,  or  held  for  an- 
other, at  least  an  estate  of  freehold  in  them,  a  conveyance 
which  was  considered  as  transferring  the  possession  must 
necessarily  be  considered  as  transferring  an  estate  of  free- 
hold ;  or,  to  speak  more  accurately,  as  transferring  the  whole 
fee.  But  this  reasoning  could  not  apply  to  grants;  their 
essential  quality  being  that  of  transferring  things  which  did 
not  lie  in  possession ;  they  therefore  could  only  transfer  the 
right ;  that  is,  could  only  transfer  that  estate  which  the  party 
had  a  right  to  convey.  It  is  in  this  sense  we  are  to  under- 
stand the  expressions  which  frequently  occur  in  our  law- 
books,  where  they  describe  a  feoffment  to  be  a  tortious,  and 
a  grant  to  be  a  rightful  conveyance.  Thus,  from  a  dif- 
ference in  the  quality  of  the  hereditaments  conveyed  by 
those  two  modes  of  conveyance,  a  difference  has  been  con- 
sidered to  exist  in  their  operation.  .  .  .  Butler's  note, 
231,  i.  (i). 

Co.  LIT.,  309,  a.  Sir  Martin  Wright  and  many  other 
writers  have  laid  it  down  as  a  general  rule  that  by  the  old 
feudal  law  the  feudatory  could  not  alien  the  feud  without 
the  consent  of  the  lord ;  nor  the  lord  alien  or  transfer  his 
seigniory  without  the  consent  of  his  feudatory;  for  the  ob- 
ligations of  the  lord  and  his  feudatory  being  reciprocal,  the 
feudatory  was  as  much  interested  in  the  conduct  and  ability 
of  the  lord,  as  the  lord  in  the  conduct  and  ability  of  his  feu- 
datory ;  and  that  as  the  lord  could  not  alien,  so  neither  could 
he  exchange,  mortgage,  or  otherwise  dispose  of  his  seig- 


434   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

niory  without  the  consent  of  his  vassal.  See  Sir  Martin 
Wright's  Introduction  to  the  Law  of  Tenures,  30,  31.  .  .  . 
This  necessity,  which  subsisted  in  our  old  law,  that  the  ten- 
ant should  consent  to  the  alienation  of  the  lord,  gave  rise  to 
the  doctrine  of  attornment.  At  the  common  law  attornment 
signified  only  the  consent  of  the  tenant  to  the  grant  of  the 
seigniory ;  or,  in  other  words,  his  consent  to  become  the  ten- 
ant of  the  new  lord.  But  after  the  statute  quid  emptorcs 
terrarum  was  passed,  by  which  subinfeudation  was  prohib- 
ited, it  became  necessary,  that  when  the  reversioner  or  re- 
mainder-man, after  an  estate  for  years,  for  life  or  in  tail, 
granted  his  reversion  or  remainder,  the  particular  tenant 
should  attorn  to  the  grantee ;  as  the  particular  tenant  must, 
otherwise,  have  held  of  the  remainder-man,  and  he  of  the 
chief  lord ;  by  which  a  new  tenure  would  be  created.  The 
necessity  of  attornement  was,  in  some  measure,  avoided  by 
the  statute  of  uses,  as  by  that  statute  the  possession  was  im- 
mediately executed  to  the  use ;  and  by  the  statute  of  wills, 
by  which  the  legal  estate  is  immediately  vested  in  the  devisee. 
Yet  attornment  continued  after  this  to  be  necessary  in  many 
cases.  But  both  the  necessity  and  efficacy  of  attornments 
have  been  almost  totally  taken  away  by  the  statutes  of  4  and 
5  Anne,  c.  16,  and  n  Geo.  2,  c.  19.  ...  — Butler's 
note,  272. 

STAT.  4  ANNE  (1705),  c.  16,  §  9.  And  be  it  further  en- 
acted by  the  authority  aforesaid,  That  from  and  after  the 
said  first  day  of  Trinity  term,  all  grants  or  conveyances 
thereafter  to  be  made,  by  fine  or  otherwise,  of  any  manors 
or  rents,  or  of  the  reversion  or  remainder  of  any  messuages 
or  lands,  shall  be  good  and  effectual,  to  all  intents  and  pur- 
poses, without  any  attornment  of  the  tenants  of  any  such 
manors,  or  of  the  land  out  of  which  such  rent  shall  be  issu- 
ing, or  of  the  particular  tenants  upon  whose  particular  es- 
tates any  such  reversions  or  remainders  shall  and  may  be 
expectant  or  depending,  as  if  their  attornment  had  been  had 
and  made. 


"     GRANT    AND    ATTORNMENT.  435 

§  10.  Provided,  nevertheless,  that  no  such  tenant  shall 
be  prejudiced  or  damaged  by  payment  of  any  rent  to  any- 
such  grantor  or  conusor  or  by  breach  of  any  condition  for 
non-payment  of  rent,  before  notice  shall  be  given  to  him  of 
such  grant  by  the  conusee  or  grantee. 

4  KENT  COM.,  490.  There  was  this  essential  difference 
between  a  feoffment  and  a  grant ;  while  the  former  carried 
destruction  in  its  course,  by  operating  upon  the  possession, 
without  any  regard  to  the  estate  or  interest  of  the  feoffor,. 
the  latterly  benignly  operated  only  upon  the  estate  or  inter- 
est which  the  grantor  had  in  the  thing  granted,  and  could 
lawfully  convey.  Feoffment  and  grant  were  the  two  great 
disposing  powers  of  transfer  of  land,  in  the  primitive  ages 
of  the  English  law.  .  .  . 

The  necessity  of  the  attornment  was  partly  avoided  by  the 
modern  modes  of  conveyance  under  the  statute  of  uses ; 
and  it  was  at  last  completely  removed  by  the  statutes  of  4 
and  5  Anne,  c.  16",  and  n  George  II.  c.  19;  and  it  has  been, 
equally  abolished  in  these  United  States.  The  New  York 
Revised  Statutes  have  rendered  the  attornment  of  the  tenant 
unnecessary  to  the  validity  of  a  conveyance  by  his  landlord  p 
though,  to  render  him  responsible  to  the  grantee,  for  rent 
or  otherwise,  he  must  have  notice  of  the  grant.  Nor  will  the 
attornment  of  a  tenant  to  a  stranger  be  valid,  unless  made 
with  his  landlord's  consent,  or  in  consequence  of  a  judgment 
or  decree  or  to  a  mortgagee  after  forfeiture  of  the  mort- 
gage. 

The  New  York  Revised  Statutes  have  given  to  deeds  of 
conveyance  of  the  inheritance  or  freehold,  the  denomination! 
of  grants;  and,  though  deeds  of  bargain  and  sale,  and  of 
lease  and  release  may  continue  to  be  used,  they  are  to  be 
deemed  grants.  That  instrument  of  conveyance  is  made 
competent  to  convey  all  the  estate  and  interest  of  the  grant- 
or, which  he  could  lawfully  convey ;  and  it  passes  no  greater 
or  other  interest.1 

1  New  York  Revised  Statutes,  Vol.  I.  738,  sees.  137,  138,  142,  143. 


436   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

N.  Y.  REAL  PROP.  LAW,  §  213.  An  attornment  to  a 
grantee  is  not  requisite  to  the  validity  of  a  conveyance  of 
real  property  occupied  by  a  tenant,  or  of  the  rents  or  profits 
thereof,  or  any  other  interest  therein.  But  the  payment  of 
rent  to  a  grantor  by  his  tenant  before  notice  of  the  convey- 
ance, binds  the  grantee ;  and  the  tenant  is  not  liable  to  such 
grantee,  before  such  notice,  for  the  breach  of  any  condition 
of  the  lease. 


CHAPTER  V. 

RELEASE. 

LIT.,  §  444.  Releases  are  in  divers  manners,  viz.,  releases 
of  all  the  right  which  a  man  hath  in  lands  or  tenements,  and 
releases  of  actions  personalls  and  realls,  and  other  things. 
"Releases  of  all  the  right  which  men  have  in  lands  and  tene- 
ments, &c.,  are  commonly  made  in  this  forme,  or  of  this 
effect : 

§  445.  Know  all  men  by  these  presents,  that  I,  A.  of  B., 
have  remised,  released,  and  altogether  from  me  and  my 
heires  quiet  claimed:  or  thus,  For  mee  and  my  heires  quiet 
claimed  to  C.  of  D.  all  the  right,  title,  and  claim  ivhich  I 
have,  or  by  any  meanes  may  have,  of  and  in  one  messuage 
with  the  appurtenances  in  F.,  &c.  And  it  is  to  bee  under- 
stood, that  these  words,  remisisse,  et  quietum  clamasse,  are 
of  the  same  effect  as  these  words,  relaxasse. 

§  446.  Also,  these  words  which  are  commonly  put  in 
such  releases,  scilicet  (quae  quovismodo  in  futurum  habere 
potero)  are  as  voide  in  law;  for  no  right  passeth  by  a  re- 
lease, but  the  right  which  the  releasor  hath  at  the  time  of  the 
release  made.  For  if  there  be  father  and  sonne,  and  the 
father  bee  disseised,  and  the  sonne  (living  his  father)  re- 
leaseth  by  his  deed  to  the  disseisor  all  the  right  which  he 
hath  or  may  have  in  the  same  tenements  without  clause  of 
warrantie,  &c.,  and  after  the  father  dieth,  &c.,  the  sonne 
may  lawfully  enter  upon  the  possession  of  the  disseisor,  for 
that  hee  had  no  right  in  the  land  in  his  father's  life,  but  the 
right  descended  to  him  after  the  release  made  by  the  death 
of  his  father,  &c. 

§  447.    Also,  in  releases  of  all  the  right  which  a  man  hath 


READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

in  certaine  lands,  &c.,  it  behooveth  him  to  whom  the  release 
is  made  in  any  case,  that  hee  hath  the  freehold  in  the  lands 
in  deed,  or  in  law,  at  the  time  of  the  release  made,  &c.  For 
in  every  case  where  he  to  whom  the  release  is  made  hath  the 
freehold  in  deed,  or  in  law,  at  the  time  of  the  release,  &c., 
there  the  release  is  good. 

§  449.  Also,  in  some  cases  of  releases  of  all  the  right, 
albeit  that  he  to  whom  the  release  is  made  hath  nothing  in 
the  freehold  in  deed  nor  in  law,  yet  the  release  is  good 
•enough.  As  if  the  disseisor  letteth  the  land  which  hee  hath 
by  disseisin  to  another  for  terme  of  his  life,  saving  the  re- 
version to  him,  if  the  disseisee  or  his  heire  release  to  the 
disseisor  all  the  right,  &c.,  this  release  is  good,  because  hee 
to  whom  the  release  is  made  had  in  law  a  reversion  at  the 
time  of  the  release  made. 

§  450.  In  the  same  manner  it  is,  where  a  lease  is  made  to 
a  man  for  terme  of  life,  the  remainder  to  another  for  terme 
of  another  man's  life,  the  remainder  to  the  third  in  taile,  the 
remainder  to  the  fourth  in  fee,  if  a  stranger  which  hath 
right  to  the  land  releaseth  all  his  right  to  any  of  them  in  the 
remainder,  such  release  is  good,  because  everie  of  them  hath 
a  remainder  in  deed  vested  in  him. 

§  451.  But  if  the  tenant  for  terme  of  life  be  disseised, 
and  afterward  he  that  hath  right  (the  possession  being  in 
the  disseisor)  releaseth  to  one  of  them  to  whom  the  re- 
mainder was  made  all  his  right,  this  release  is  void,  because 
hee  had  not  a  remainder  in  deed  at  the  time  of  the  release 
made,  but  only  a  right  of  a  remainder. 

§  459.  Also,  if  a  man  letteth  to  another  his  land  for  terme 
of  yeares,  if  the  lessor  release  to  the  lessee  all  his  right,  &c., 
before  that  the  lessee  had  entred  into  the  same  land  by  force 
of  the  same  lease,  such  release  is  void,  for  that  the  lessee  had 
not  possession  in  the  land  at  the  time  of  the  release  made, 
'but  only  a  right  to  have  the  same  land  by  force  of  the  lease. 
But  if  the  lessee  enter  into  the  land,  and  hath  possession  of 
it  by  force  of  the  said  lease,  then  such  release  made  to  him 
"by  the  feoffor,  or  by  his  heire,  is  sufficient  to  him  by  reason 


RELEASE.  439 

of  the  privitie  which  by  force  of  the  lease  is  between  them, 
&c. 

§  460.  In  the  same  manner  it  is,  as  it  seemeth,  where  a 
lease  is  made  to  a  man  to  hold  of  the  lessor  at  his  will,  by 
force  of  which  lease  the  lessee  hath  possession ;  if  the  lessor 
in  this  case  make  a  release  to  the  lessee  of  all  his  right,  &c., 
this  release  is  good  enough  for  the  privity  which  is  betweene 
them ;  for  it  shall  bee  in  vaine  to  make  an  estate  by  a  livery 
of  seisin  to  another  where  he  hath  possession  of  the  same 
land  by  the  lease  of  the  same  man  before,  &c. 

But  the  contrarie  is  holden,  Pasch.  2,  E.  4,  by  all  the  jus- 
tices. 

Co.  LIT.,  270,  b.  "Sed  contrarium  tenetur,  &c."  This  is 
of  a  new  addition,  and  the  booke  here  cited  ill  understood, 
for  it  is  to  be  understood  of  a  tenant  at  sufferance. 

LIT.,  §  461.  But  where  a  man  of  his  owne  head  occupieth 
lands  or  tenements  at  the  will  of  him  which  hath  the  free- 
hold, and  such  occupier  claimeth  nothing  but  at  will,  &c.,  if 
hee  which  hath  the  freehold  will  release  all  his  right  to  the 
occupier,  &c.,  this  release  is  void,  because  there  is  no  privitie 
betweene  them  by  the  lease  made  to  the  occupier,  nor  by 
other  manner,  &c. 

Co.  LIT.,  271,  a.  Privitie  is  a  word  common  as  well  to  the 
English  as  to  the  French,  and  in  the  understanding  of  the 
common  law  is  fourefold :  i.  As  privies  in  estate,  whereof 
Littleton  here  speaketh,  as  between  the  donor  and  donee, 
lessor  and  lessee,  which  privitie  is  ever  immediate.  2.  Priv- 
ies in  btoud ;  as  the  heire  to  the  ancestor,  or  betweene  co- 
parceners, &c.  3.  Privies  in  representation;  as  executors, 
&c.,  to  the  testator.  And  fourthly,  privities  in  tenure,  as  the 
lord  and  tenant,  &c.,  which  may  be  reduced  to  two  generall 
heads,  privies  in  deed,  and  privies  in  law. 

2  BL.  COM.,  324.  These  [ feoff ment,  gift,  grant,  lease, 
exchange,  partition]  are  the  several  species  of  primary  or 


44O   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

original  conveyances.  Those  which  remain  are  of  the  sec- 
ondary or  derivative  sort;  which  presuppose  some  other 
conveyance  precedent,  and  only  serve  to  enlarge,  confirm, 
alter,  restrain,  restore,  or  transfer  the  interest  granted  by 
such  original  conveyance :  as, 

Releases;  which  are  a  discharge  or  a  conveyance  of  a 
man's  right  in  lands  or  tenements,  to  another  that  hath  some 
former  estate  in  possession.  The  words  generally  used 
therein  are  "remised,  released,  and  forever  quit-claimed." 
And  these  releases  may  enure  either :  i .  By  way  of  enlarg- 
ing an  estate,  or  enlarger  Restate:  as  if  there  be  tenant  for 
life  or  years,  remainder  to  another  in  fee,  and  he  in  re- 
mainder releases  all  his  right  to  the  particular  tenant  and 
his  heirs,  this  gives  him  the  estate  in  fee.  But  in  this  case 
the  relessee  must  be  in  possession  of  some  estate,  for  the  re- 
lease to  work  upon ;  for  if  there  be  lessee  for  years,  and  be- 
fore he  enters  and  is  in  possession,  the  lessor  releases  to  him 
all  his  right  in  the  reversion,  such  release  is  void  for  want  of 
possession  in  the  relessee.  2.  By  way  of  passing  an  estate, 
or  mitter  V estate:  as  when  one  of  two  coparceners  releaseth 
all  her  right  to  the  other,  this  passeth  the  fee-simple  of  the 
whole.  And  in  both  these  cases  there  must  be  a  privity  of 
estate  between  the  relessor  and  relessee ;  that  is,  one  of  their 
estates  must  be  so  related  to  the  other,  as  to  make  but  one 
and  the  same  estate  in  law.  3.  By  way  of  passing  a  right, 
or  mitter  le  droit:  as  if  a  man  be  disseised,  and  releaseth  to 
his  disseisor  all  his  right,  hereby  the  disseisor  acquires  a 
new  right,  which  changes  the  quality  of  his  estate,  and  ren- 
ders that  lawful  which  before  was  tortious  or  wrongful. 
4.  By  way  of  extinguishment:  as  if  my  tenant  for  life  makes 
a  lease  to  A.  for  life,  remainder  to  B.  and  his  heirs,  and  I 
release  to  A.;  this  extinguishes  my  right  to  the  reversion, 
and  shall  enure  to  the  advantage  of  B.'s  remainder  as  well 
as  of  A.'s  particular  estate.  5.  By  way  of  entry  and  feoff- 
ment:  as  if  there  be  two  joint  disseisors,  and  the  disseisee 
releases  to  one  of  them,  he  shall  be  sole  seised,  and  shall 
keep  out  his  former  companion ;  which  is  the  same  in  effect 


RELEASE.  441 

as  if  the  disseisee  had  entered,  and  thereby  put  an  end  to 
the  disseisin,  and  afterwards  had  enfeoffed  one  of  the  dis- 
seisors  in  fee.  And  hereupon  we 'may  observe  that  when  a 
man  has  in  himself  the  possession  of  lands,  he  must  at  the 
common  law  convey  the  freehold  by  feoff  ment  and  livery; 
which  makes  a  notoriety  in  the  country:  but  if  a  man  has 
only  a  right  or  a  future  interest,  he  may  convey  that  right  or 
interest  by  a  mere  release  to  him  that  is  in  possession  of  the 
land :  for  the  occupancy  of  the  relessee  is  a  matter  of  suffi- 
cient notoriety  already. 

2  WASHBURN,  REAL  PROP.,  606.  ...  It  may  be  re- 
marked that  while  a  deed  of  simple  release,  made  to  one  who 
has  neither  an  estate  in  nor  possession  of  land,  would  be 
merely  void,  a  form  of  deed  of  the  natur^  of  a  release,  con- 
taining words  of  grant  as  well  as  release,  commonly  known 
as  a  "quit-claim"  deed,  has  long  been  in  use  in  this  country, 
and  has  not  only  been  regarded  practically  as  a  mode  of 
conveying  an  independent  title  to  real  property,  but  is,  by 
the  statutes  of  some  of  the  States,  declared  to  be  effectual 
for  that  purpose.  But  a  quit-claim  deed  does  not  pass  any 
more  title  than  the  grantor  has.  .  .  .  Yet  if  the  grantor 
have  a  title  to  land,  a  deed  of  quit-claim  is  just  as  effective 
to  pass  that  title  as  a  deed  with  covenants  of  warranty. 


CHAPTER  VI. 
SURRENDER. 

Co.  LIT.,  337,  b.  "Surrender,"  sursum  redditio,  properly 
is  a  yeelding  up  of  an  estate  for  life  or  yeares  to  him  that 
hath  an  immediate  estate  in  reversion  or  remainder,  wherein 
the  estate  for  life  or  yeares  may  drowne  by  mutuall  agree- 
ment betweene  them. 

338,  a.  A  surrender  properly  taken  is  of  two  sorts,  viz.,  a 
surrender  in  deed,  or  by  expresse  words  (whereof  Littleton 
here  putteth  an  example),1  and  a  surrender  in  law  wrought 
by  consequent  by  operation  of  law.  Littleton  here  putteth  his 
case  of  a  surrender  of  an  estate  in  possession,  for  a  right 
cannot  bee  surrendered.  And  it  is  to  be  noted,  that  a  sur- 
render in  law  is  in  some  cases  of  greater  force  than  a  sur- 
render in  deed.  As  if  a  man  make  a  lease  for  yeares  to  be- 
gin at  Michaelmasse  next,  this  future  interest  cannot  be  sur- 
rendred,  because  there  is  no  reversion  wherein  it  may 
drowne ;  but  by  a  surrender  in  law  it  may  be  drowned.  As 
if  the  lessee  before  Michaelmasse  take  a  new  lease  for  yeares 
either  to  begin  presently  or  at  Michaelmasse,  this  is  a  sur- 
render in  law  of  the  former  lease.  Fortior  &  aequior  est 
dispositio  legis  quam  hominis. 

Also  there  is  a  surrender  without  deed,  whereof  Littleton 
putteth  here  an  example,  of  an  estate  for  life  of  lands,  which 
may  be  surrendred  without  deed,  and  without  livery  of 
seisin  ;  because  it  is  but  a  yeelding,  or  a  restoring  of  the  state 
againe  to  him  in  the  immediate  reversion  or  remainder, 
which  are  alwayes  favoured  in  law.  And  there  is  also  a 
surrender  by  deed;  and  that  is  of  things  that  lie  in  grant, 
whereof  a  particular  estate  cannot  commence  without  deed, 

1  §  636. 


SURRENDER.  443 

and  by  consequent  the  estate  cannot  be  surrendred  without 
deed.  But  in  the  example  that  Littleton  here  putteth,  the 
estate  might  commence  without  deed,  and  therefore  might 
bee  surrendred  without  deed.  And  albeit  a  particular  estate 
be  made  of  lands  by  deed,  yet  may  it  be  surrendred  with- 
out deed,  in  respect  of  the  nature  and  qualitie  of  the  thing 
demised,  because  the  particular  estate  might  have  beene 
made  without  deed ;  and  so  on  the  other  side.  If  a  man  be 
tenant  by  the  courtesie,  or  tenant  in  dower  of  an  advowson, 
rent,  or  other  thing  that  lies  in  grant ;  albeit  there  the  estate 
begin  without  deed,  yet  in  respect  of  the  nature  and  qualitie 
of  the  thing  that  lies  in  grant,  it  cannot  be  surrendred  with- 
out deed.  And  so  if  a  lease  for  life  be  made  of  lands,  the 
remainder  for  life;  albeit  the  remainder  for  life  began  with- 
out deed,  yet  because  remainders  and  reversions,  though 
they  be  of  lands,  are  things  that  lie  in  grant,  they  cannot  be 
surrendred  without  deed.  See  in  my  Reports  plentifull 
matter  of  surrenders. 

2  BL.  COM.,  326.  A  surrender,  sursumredditio,  or  ren- 
dering up,  is  of  a  nature  directly  opposite  to  a  release ;  for, 
as  that  operates  by  the  greater  estate's  descending  upon  the 
less,  a  surrender  is  the  falling  of  a  less  estate  into  a  greater. 
It  is  defined  a  yielding  up  of  an  estate  for  life  or  years  to  him 
that  hath  the  immediate  reversion  or  remainder,  wherein 
the  particular  estate  may  merge  or  drown  by  mutual  agree- 
ment between  them.  It  is  done  by  these  words,  "hath  sur- 
rendered, granted,  and  yielded  up."  The  surrenderor  must 
be  in  possession ;  and  the  surrenderee  must  have  a  higher 
estate,  in  which  the  estate  surrendered  may  merge;  there- 
fore tenant  for  life  cannot  surrender  to  him  in  remainder 
for  years.  In  a  surrender  there  is  no  occasion  for  livery  of 
seisin ;  for  there  is  a  privity  of  estate  between  the  sur- 
renderor and  the  surrenderee ;  the  one's  particular  estate 
and  the  other's  remainder  are  one  and  the  same  estate :  and 
livery  having  been  once  made  at  the  creation  of  it,  there  is 
no  necessity  for  having  it  afterwards.  And,  for  the  same 


444   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

reason,  no  livery  is  required  on  a  release  or  confirmation  in 
fee  to  tenant  for  years  or  at  will,  though  a  freehold  thereby 
passes:  since  the  reversion  of  the  lessor,  or  confirmor,  and 
the  particular  estate  of  the  relessee,  or  confirmee,  are  one  and 
the  same  estate;  and  where  there  is  already  a  possession, 
derived  from  such  a  privity  of  estate,  any  farther  delivery  of 
possession  would  be  vain  and  nugatory. 

15  WEND.  (N.  Y.),  405-407.  Before  the  statute  of  frauds 
and  perjuries,  any  form  of  words  without  writing,  whereby 
an  intention  appeared  to  surrender  up  the  possession  of  the 
premises  to  the  lessor  or  reversioner,  was  sufficient  for  that 
purpose.  This  was  called  a  surrender  in  fact.  There  was 
also  a  surrender  in  la^v.  It  was  effected  by  the  acceptance 
of  a  new  lease  of  the  premises  from  the  lessor,  for  the  whole 
or  a  part  of  the  time  embraced  in  the  former  one,  because  it 
necessarily  implied  a  determination  and  surrender  of  that 
lease ;  otherwise  the  lessor  would  be  unable  to  make  the  sec- 
ond, or  the  lessee  to  enjoy  it,  and  it  was  therefore  but  rea- 
sonable to  presume  both  parties  intended  to  waive  and  re- 
linquish the  benefit  of  the  first  one.  The  second  lease  before 
the  statute  referred  to  of  course  need  not  have  been  in  writ- 
ing to  operate  an  effectual  surrender  of  the  first  one.  The 
statute  of  29  Car.  enacted  "that  all  leases,  estates,  interests 
of  freehold  or  terms  of  years,  or  any  uncertain  interests  of, 
in,  to  or  out  of  any  lands,  &c.,  made  or  created  by  livery  and 
seisin  only,  or  by  parol,  and  not  put  in  writing,  &c.,  shall 
have  the  force  and  effect  of  leases  or  estates  at  will  only," 
&c.,  excepting  leases  not  exceeding  the  term  of  three  years 
from  the  making  thereof.  And  also,  "no  leases,  estates  or 
interest,  either  of  freehold  or  term  of  years,  or  any  uncer- 
tain interest,  &c.,  of,  in,  to  or  out  of  any  messuages,  &c., 
shall  be  assigned,  granted  or  surrendered,  unless  by  deed 
or  note,  in  writing,  or  operation  of  law."  Our  statute  (2 
R.  S.,  134,  §  6)  provides  that  "no  estate  or  interest  in  lands, 
other  than  leases  for  a  term  not  exceeding  one  year,  &c., 
shall  hereafter  be  created,  granted,  assigned,  surrendered, 


SURRENDER.  445 

&c.,  unless  by  act  or  operation  of  law,  or  by  deed  or  convey- 
ance in  writing,"  &c.,  §  8. 

******* 

It  is  stated  by  Baron  Gilbert,  4  Bacon's  Abr.,  210,  that 
since  the  statute  of  frauds  the  new  lease  must  be  in  writ- 
ing in  order  to  operate  as  an  implied  surrender  of  the 
old  one,  for  it  is  then  of  equal  notoriety  with  a  surrender  in 
writing.  This  position  is  also  adopted  by  Serjeant  Wil- 
liams, in  his  notes  upon  the  case  of  Thursby  v.  Plant,  I 
Saund.  236,  n.  b.  But  as  sun  enders  by  operation  of  law  are 
expressly  excepted  out  of  the  statute,  as  a  necessary  con- 
sequence they  are  left  as  at  common  law;  and  there  it  is 
clear  it  need  not  be  in  writing  to  have  the  effect  to  surren- 
der the  old  one,  even  if  by  deed.  2  Starkie's  Ev.  342;  20 
Viner,  143,  L.  pi.  i,  n.;  I  Saunders,  236,  n.  c.  I  am  inclined 
therefore  to  think  that  a  valid  parol  lease,  since  the  statute, 
might  produce  a  surrender  in  law  within  the  reason  and 
principle  upon  which  this  doctrine  is  founded.  The  true 
rule  seems  to  be  that  laid  down  by  Mr.  Starkie,  2  Starkie's 
Ev.  342,  as  follows :  The  taking  a  new  lease  by  parol  is  by 
operation  of  law  a  surrender  of  the  old  one,  although  it  be 
by  deed,  provided  it  be  a  good  one,  and  pass  an  interest  ac- 
cording to  the  contract  and  intention  of  the  parties ;  for 
otherwise  the  acceptance  of  it  is  no  implied  surrender  of  the 
old  one. — Per  Nelson,  J.,  in  Schieffelin  v.  Carpenter  (1836). 


CHAPTER  VII. 

DEDICATION. 

3  KENT  COM.,  450.  Dedications  of  land  for  public  pur- 
poses, as  for  charitable  and  religious  uses,  and  for  public 
highways  and  village  squares,  enure  as  grants,  and  may  be 
valid,  without  any  specific  grantee  in  esse  at  the  time,  to 
whom  the  fee  could  be  conveyed.  And  if  a  street  be  desig- 
nated by  public  commissioners,  duly  authorized,  as  passing 
over  certain  lands,  and  the  owner  subsequently  conveys  part 
of  the  land  as  lots,  bounding  them  on  such  a  street,  this  is 
held  to  be  a  dedication  of  the  land,  over  which  the  street 
passes,  to  the  public  use,  and  on  opening  the  street  the  pur- 
chaser can  only  obtain  a  nominal  sum  as  a  compensation  for 
the  fee.  But  it  has  been  an  unsettled  question  what  length 
of  time  was  requisite  to  create  the  presumption  of  a  valid 
dedication  of  a  highway  to  the  public.  .  .  .  The  true 
principle  on  the  subject,  to  be  deduced  from  the  authorities, 
I  apprehend  to  be,  that  if  there  be  no  other  evidence  of  a 
grant  or  dedication  than  the  presumption  arising  from  the 
fact  of  acquiescence  on  the  part  of  the  owner,  in  the  free  use 
and  enjoyment  of  the  way  as  a  public  road,  the  period  of 
twenty  years,  applicable  to  incorporeal  rights,  would  be  re- 
quired as  being  the  usual  and  analogous  period  of  limita- 
tion. But  if  there  were  clear,  unequivocal  and  decisive  acts 
of  the  owner,  amounting  to  an  explicit  manifestation  of  his 
will  to  make  a  permanent  abandonment  of  the  road,  those 
acts  woiild  be  sufficient  to  establish  the  dedication  within 
any  intermediate  period. 


II.     Title  by  Operation  of  J^aw. 
CHAPTER  I. 

DESCENT. 

GLANVILL,  VII.,  c.  3.  Of  heirs  some  are  next  of  blood, 
some  are  more  remote.  Heirs  next  of  blood  are  those  who 
are  begotten  of  the  body  of  the  ancestor,  as  a  son  or  a 
daughter.  On  failure  of  these  the  remoter  heirs  are  called 
to  the  inheritance,  for  instance  the  grandson  or  grand- 
daughter descending  in  a  direct  line  from  a  son  or  a  daugh- 
ter without  limit.  Next  the  brother  and  sister  and  their 
descendants.  Next  the  uncle  both  on  the  father's  and  the 
mother's  side,  and  the  aunt  in  like  manner  and  their  de- 
scendants. When,  therefore,  any  one  who  holds  an  inher- 
itance dies,  if  he  has  an  only  son,  it  is  without  reserve  true 
that  that  son  is  the  successor  of  his  father  in  the  whole  in- 
heritance; If  he  has  left  more  sons  than  one,  then  there  is 
a  distinction  whether  he  was  a  knight,  or  a  tenant  of  a 
knight's  fee,  or  a  free  socman.  Because  if  he  were  a  knight 
or  a  tenant  by  knight  service,  then  according  to  the  law  of 
England  the  first-born  son  succeeds  his  father  in  the  whole 
inheritance,  so  that  none  of  his  brothers  can  demand  of 
right  any  share  therein.  If,  however,  he  be  a  free  socage 
tenant,  then  the  inheritance  shall  be  divided  between  all  the 
sons,  however  many  they  be,  in  equal  shares,  if  that  socage- 
land  has  been  subject  by  ancient  custom  to  division,  saving, 
however,  to  the  eldest  son  the  chief  messuage  in  considera- 
tion of  the  dignity  due  to  his  seniority.  He  must,  however, 
make  its  value  good  to  the  others  out  of  other  property. 
But  if  there  is  no  ancient  custom  of  division,  then  the  first- 


448   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

born  son  according  to  the  custom  of  some  places  will  get 
the  whole  inheritance,  while  according  to  the  custom  of 
other  places  the  youngest  son  is  the  heir.  Further,  if  any 
one  leaves  an  only  daughter  his  heiress,  then  what  has  been 
said  above  as  to  an  only  son  applies  to  the  daughter  without 
any  distinction.  But  if  he  has  left  more  daughters  than  one, 
then  the  inheritance  shall  be  divided  equally  among  them, 
whether  their  father  was  a  knight  or  a  socman,  saving, 
however,  to  the  eldest  daughter  the  chief  messuage  accord- 
ing to  the  above-mentioned  rule.  And  it  should  be  observed 
that  if  any  one  of  the  brothers  or  sisters,  amongst  whom  the 
inheritance  is  divided,  dies  without  an  'heir  of  the  body, 
then  the  share  which  belonged  to  the  deceased  shall  be 
divided  amongst  the  other  survivors.  ...  If,  more- 
over, any  one  has  a  son  and  heir,  and  besides  a  daughter  or 
daughters,  the  son  succeeds  to  the  whole ;  hence  it  follows 
that  if  any  one  has  had  more  wives  than  one,  and  a  daughter 
or  daughters  by  each  of  them,  and  at  last  by  the  latest  wife 
an  only  son,  that  son  alone  takes  the  inheritance  of  his 
father,  because,  speaking  generally,  it  is  true  that  a  woman 
never  shares  with  a  man  in  any  inheritance,  unless  there 
may  be  some  special  practice  in  a  particular  borough  exist- 
ing by  virtue  of  long  usage  in  that  borough.  If,  however, 
any  one  has  had  several  wives,  and  by  each  of  them  a 
daughter  or  daughters,  all  the  daughters  shall  share  equally 
in  the  father's  inheritance,  in  the  same  way  as  if  they  had  all 
been  by  the  same  mother.  And  when  any  one  dies  without 
a  son  or  daughter  as  heir,  if  he  has  grandsons  or  grand- 
daughters, children  of  a  son  or  a  daughter,  then  there  is  no 
question  but  that  the  grandchildren  succeed  in  the  same  way 
as  has  been  before  laid  down  concerning  the  succession  of  a 
son  or  daughter,  and  that  the  same  rules  apply.  For  lineal 
descendants  are  always  preferred  to  collaterals.  But  when 
any  one  dies  leaving  a  younger  son  and  a  grandson  the  son 
of  a  pre-deceased  eldest  son,  there  often  arises  a  great  ques- 
tion as  to  the  law,  which  of  the  two  should  be  preferred  to 
the  succession,  that  is  to  say,  whether  the  younger  son  or  the 


DESCENT.  449 

v 

grandson.  For  some  used  to  be  of  opinion  that  the  younger 
son  was  the  rightful  heir  rather  than  the  grandson,  appar- 
ently on  the  ground  that  the  first-born  son,  not  having  sur- 
vived his  father,  never  actually  became  his  heir,  and  so  the 
younger  son  having  survived  both  his  father  and  his  brother 
rightly  in  their  view  succeeds  his  father.  Others,  however, 
think  that  the  grandson  ought  of  right  to  be  preferred  to  his 
uncle.  For  since  the  grandson  is  the  issue  of  the  eldest  son, 
and  is  the  heir  of  his  body,  he  ought  to  succeed  to  all  the 
rights  which  his  father  would  have  had  if  he  had.  been  still 
alive.  This  is  my  opinion,  unless  the  father  has  been  por- 
tioned by  the  grandfather,  etc. 

c.  4.  On  the  failure  of  lineal  descendants  the  brother  or 
brothers  will  succeed,  or,  if  there  are  no  brothers,  then  the 
sisters  come  in ;  if  these  are  pre-deceased,  their  children  are 
next  in  order,  and  after  these  the  uncles  and  their  children, 
and  in  the  last  place  aunts  and  their  children,  bearing  in 
mind  the  distinction  above  explained  between  the  sons  of  a 
knight  and  the  sons  of  a  socman,  and  the  grandsons  in  like 
manner,  observing  also  the  distinction  between  males  and 
females. 

c.  1 6.  A  doubt  may  arise  as  to  the  case  of  a  bastard,  who 
cannot  have  any  heir  unless  he  have  an  heir  of  his  body. 

HALE,  COM.  LAW,  250-255.  First,  touching  hereditary 
successions.  It  seems,  that  according  to  the  ancient  British 
laws,  the  eldest  son  inherited  their  earldoms  and  baronies; 
for  they  had  great  dignities  and  jurisdictions  annexed  to 
them,  and  were  in  nature  of  principalities;  but  that  their 
ordinary  freeholds  descended  to  all  their  sons ;  and  this  cus- 
tom they  carried  with  them  into  Wales,  whither  they  were 
driven.  .  .  . 

Whereupon,  three  things  are  observable,  viz. :  First,  that 
at  this  time,  the  hereditary  succession  of  the  eldest  son,  was 
then  known  to  be  of  the  common  and  usual  law  in  England. 
Secondly,  that  the  succession  of  all  the  sons  was  the  ancient 
customary  law  among  the  British  in  Wales,  which  by  this 


45°   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

statute  was  continued  to  them.  Thirdly,  that  before  this 
time  bastards  were  admitted  to  inherit  in  Wales,  as  well  as 
the  legitimate  children ;  which  custom  is  hereby  abrogated : 
and  although  we  have  but  few  evidences  touching  the  Brit- 
ish laws  before  their  expulsion  hence  into  Wales,  yet  this 
usage  in  Wales  seems  sufficiently  to  evidence  this  to  have 
been  the  ancient  British  law. 

Secondly,  as  to  the  times  of  the  Saxons  and  Danes.  Their 
laws,  collected  by  Brompton  and  Lambard,  speak  not  much 
concerning  the  course  of  descents ;  yet  it  seems  that  com- 
monly descents  of  their  ordinary  lands  at  least,  except  bar- 
onies and  royal  inheritances,  descended  also  to  all  the  sons ; 
for  amongst  the  laws  of  King  Canutus,  in  Mr.  Lambard,  is 
this  law,  viz.,  Xo.  68:  "Sh'e  quis  incuria  sive  morte  repen- 
tina  fucrit  intesfato  mortuiis,  dominns  tauten  nullain  rcrum 
suarum  partcui  (practcr  cam  qnac  jure  debetur  hereoti 
nomine}  sibi  assumito.  Vcrniu  eas  jndicio  suo  uxori,  lib- 
eris  fy  cognatione  pro.vimis  juste  (pro  suo  cuique  jure} 
distributo."  .  .  . 

But  this  equal  division  of  inheritances  among  all  the 
children  was  found  to  be  very  inconvenient,  for : 

First,  it  weakened  the  strength  of  the  kingdom;  for  by 
frequent  parcelling  and  subdividing  of  inheritances,  in  proc- 
ess of  time  they  became  so  divided  and  crumbled,  that  there 
were  few  persons  of  able  estates  left  to  undergo  public 
charges  and  offices. 

Secondly,  it  did  by  degrees  bring  the  inhabitants  to  a  low 
kind  of  country  living ;  and  females  were  broken ;  and  the 
younger  sons,  which,  had  they  not  had  those  little  parcels  of 
land  to  apply  themselves  to,  would  have  betaken  themselves 
to  trades,  or  to  civil,  or  military,  or  ecclesiastical  employ- 
ments, neglecting  those  opportunities,  wholly  applied  them- 
selves to  those  small  divisions  of  lands ;  whereby  they 
neglected  the  opportunities  of  greater  advantage  of  enrich- 
ing themselves  and  the  kingdom.  .  .  .. 

So  that  without  question,  by  little  and  little,  almost  gener- 
ally in  all  counties  of  England  (except  in  Kent,  who  were 


1 
DESCENT.  451 

most  tenacious  of  their  old  customs  in  which  they  gloried, 
and  some  particular  feuds  and  places  where  a  contrary 
usage  prevailed),  the  generality  of  descents  or  successions, 
by  little  and  little,  as  ivcll  of  socage  lands  as  knights  ser- 
vice, went  to  the  eldest  son,  according  to  the  declaration  of 
King  Edward  I.  in  the  statute  of  Wales  above-mentioned. 

STAT.  MERTON  (20  HEN.  III.,  1235),  c.  9.  To  the 
King's  Writ  of  Bastardy,  whether  one  being  born  before 
matrimony  may  inherit  in  like  manner  as  he  that  is  born 
after  matrimony,  all  the  bishops  answered  that  they  would 
not,  nor  could  not,  answer  to  it ;  because  it  was  directly 
against  the  common  order  of  the  Church.  (2)  And  all 
the  bishops  instanted  the  Lords,  that  they  would  consent, 
that  all  such  as  were  born  afore  matrimony  should  be  legit- 
imate, as  well  as  they  that  be  born  within  matrimony,  as  to 
the  succession  of  inheritance,  forsomuch  as  the  Church  ac- 
cepteth  such  for  legitimate.  And  all  the  Earls  and  Barons 
with  one  voice  answered  that  they  would  not  change  the 
laws  of  the  realm,  which  hitherto  have  been  used  and  ap- 
proved. 

LIT.,  §  2.  And  if  a  man  purchase  land  in  fee  simple  and 
die  without  issue,  he  which  is  his  next  cousin  collateral!  of 
the  whole  blood,  how  farre  so  ever  he  be  from  him  in  degree, 
may  inherite  and  have  the  land  as  heire  to  him. 

§  3.  But  if  there  be  father  and  son,  and  the  father  hath 
a  brother  that  is  uncle  to  the  son,  and  the  son  purchase  land 
in  fee-simple,  and  die  without  issue,  living  his  father,  the 
uncle  shall  have  the  land  as  heir  to  the  son,  and  not  the 
father,  yet  the  father  is  neerer  of  blood ;  because  it  is  a  max- 
ime  in  law,  that  inheritance  may  lineally  descend,  but  not 
ascend.  Yet,  if  the  son  in  this  case  die  without  issue,  and 
his  uncle  enter  into  the  land  as  heire  to  the  sonne  (as  by  law 
he  ought)  and  after  the  uncle  dieth  without  issue,  living  the 
father,  the  father  shall  have  the  land  as  heire  to  the  uncle, 
and  not  as  heire  to  the  sonne,  for  that  he  commeth  to  the 
land  by  collateral  discent  and  not  by  lineall  ascent. 


452   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

§  4.  And  in  case  where  the  sonne  purchaseth  land  in  fee- 
simple,  and  dies  without  issue,  they  of  his  blood  on  the 
father's  side  shall  inherite  as  heires  to  him,  before  any  of 
the  blood  on  the  mother's  side :  but  if  he  hath  no  heire  on 
the  part  of  his  father  then  the  land  shall  descend  to  the 
heires  on  the  part  of  the  mother.  But  if  a  man  marrieth  an 
inheritrix  of  lands  in  fee  simple,  who  have  issue  a  sonne, 
and  die,  and  the  sonne  enter  into  the  tenements,  as  sonne 
and  heire  to  his  mother,  and  after  dies  without  issue,  the 
heires  of  the  part  of  the  mother  ought  to  inherite,  and  not 
the  heires  on  the  part  of  the  father.  And  if  he  hath  no 
heire  on  the  part  of  the  mother,  then  the  lord,  of  whom  the 
land  is  holden,  shall  have  the  land  by  escheate.  In  the  same 
manner  it  is,  if  lands  descend  to  the  sonne  of  the  part  of  the 
father,  and  he  entreth,  and  afterwards  dies  without  issue, 
this  land  shall  descend  to  the  heires  on  the  part  of  the  father, 
and  not  to  the  heires  on  the  part  of  the  mother.  And  if 
there  be  no  heire  of  the  part  of  the  father,  the  lord  of  whom 
the  land  is  holden  shall  have  the  land  by  escheate.  And 
so  see  the  diversity,  where  the  sonne  purchaseth  lands 
or  tenements  in  fee  simple,  and  where  he  cometh  to  them 
by  descent  on  the  part  of  his  mother,  or  on  'the  part  of  his 
father. 

§  5.  Also,  if  there  be  three  brethren,  and  the  middle 
brother  purchaseth  lands  in  fee  simple,  and  die  without 
issue,  the  elder  brother  shall  have  the  land  by  descent,  and 
not  the  younger,  &c.  And  also  if  there  be  three  brethren, 
and  the  youngest  purchase  lands  in  fee  simple,  and  die  with- 
out issue,  the  eldest  brother  shall  have  the  lands  by  descent 
and  not  the  middle,  for  that  the  eldest  is  most  worthy  of 
blood. 

§  6.  Also,  it  is  to  be  understood,  that  none  shall  have 
land  of  fee  simple  by  descent  as  heire  to  any  man  unlesse 
he  be  his  heire  of  the  whole  blood.  For  if  a  man  hath 
issue  two  sonnes  by  divers  venters  and  the  elder  pur- 
chase lands  in  fee  simple,  and  dye  without  issue,  the  younger 
brother  shall  not  have  the  land,  but  the  uncle  of  the  elder 


DESCENT.  453 

brother,  or  some  other  his  next  cosin  shall  have  the  same, 
because  the  younger  brother  is  but  of  halfe  blood  to  the 
elder. 

§  7.  And  if  a  man  hath  issue  a  sonne  and  a  daughter  by 
one  venter  and  a  son  by  another  venter,  and  the  son  of  the 
first  venter  purchase  lands  in  fee  and  die  without  issue,  the 
sister  shall  have  the  land  by  descent,  as  heire  to  her  brother, 
and  not  the  younger  brother,  for  that  the  sister  is  of  the 
whole  blood  of  her  elder  brother. 

§  8.(  And  also,  where  a  man  is  seised  of  lands  in  fee 
simple,  and  hath  issue  a  sonne  and  daughter  by  one  venter, 
and  a  son  by  another  venter,  and  die,  and  the  eldest  son  en- 
ter, and  die  without  issue,  the  daughter  shall  have  the  land, 
and  not  the  younger  son,  yet  the  younger  son  is  heire  to  the 
father,  but  not  to  his  brother.  But  if  the  elder  son  doth  not 
enter  into  the  land  after  the  death  of  his  father,  but  die  be- 
fore any  entry  made  by  him,  then  the  younger  brother  may 
enter,  and  shall  have  the  land  as  heire  to  his  father.  But 
where  the  elder  son  in  the  case  aforesaid  enters  after  the 
death  of  his  father,  and  hath  possession,  there  the  sister  shall 
have  the  land,  because  possessio  fratris  de  feodo  simplici 
facit  sororem  esse  haeredem.  But  if  there  be  2  brothers 
by  divers  venters,  and  the  elder  is  seised  of  land  in  fee,  and 
die  without  issue,  and  his  uncle  enter  as  next  heire  to  him, 
who  also  dies  without  issue,  now  the  younger  brother  may 
have  the  land  as  heire  to  the  uncle,  for  that  he  is  of  the 
whole  blood  to  him,  albeit  he  be  but  of  the  halfe  blood  to  his 
elder  brother. 

Co.  LIT.,  13,  a.  If  a  man  giveth  lands  to  a  man,  to  have 
and  to  hold  to  him  and  his  heires  on  the  part  of  his  mother, 
yet  the  heires  of  the  part  of  the  father  shall  inherite,  for  no 
man  can  institute  a  new  kind  of  inheritance  not  allowed  by 
the  law,  and  the  words  (of  the  part  of  his  mother)  are 
voide,  as  in  the  case  that  Littleton  putteth  in  this  chapter.  . 
If  a  man  giveth  lands  to  a  man  to  him  and  his  heires  males, 
the  law  rejecteth  this  word  males,  because  there  is  no  such 


454   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

kind  of  inheritance,   whereof  you   shall   read   more  in  his 
proper  place. 

4  GRAY,  CAS.  PROP.,  9.  Canons  of  Descent.1 — i.  Inher- 
itances shall  lineally  descend  to  the  issue  of  the  person  who 
last  died  actually  seised  in  infinitum,  but  shall  never  lineally 
ascend. 

2.  The  male  issue  shall  be  admitted  before  the  female. 

3.  Where  there  are  two  or  more  males  in  equal  degree, 
the  eldest  only  shall  inherit,  but  the  females  all  together. 

4.  The  lineal  descendants,  in  infinitum,  of  any  person  de- 
ceased shall  represent  their  ancestor ;  that  is,  shall  stand  in 
the  same  place  as  the  person  himself  would  have  done  had 
he  been  living. 

5.  On  failure  of  lineal  descendants,  or  issue,  of  the  person 
last  seised,  the  inheritance  shall  descend  to  his  collateral 
relations,  being  of  the  blood  of  the  first  purchaser ;  subject 
to  the  three  preceding  rules. 

6.  The  collateral  heir  of  the  person  last  seised  must  be  his 
next  collateral  kinsman  of  the  whole  blood. 

7.  In  collateral  inheritances  the  male  stocks  shall  be  pre- 
ferred to  the  female  (that  is,  kindred  derived  from  the  blood 
of  the  male  ancestors,  however  remote,  shall  be  admitted 
before  those  from  the  blood  of  the  female,  however  near)  ; 
unless  where  the  lands  have,  in  fact,  descended  from  a  fe- 
male. 

2  BL.  COM.,  202-207.  Consanguinity,  or  kindred,  is  de- 
fined by  the  wrirers  on  these  subjects  to  be  "vinculum  per- 
sonarnm  ab  eodem  stipite  descend  entium:"  the  connection 

1  These  canons  are  taken  from  Blackstone.  They  have  been  changed 
in  some  important  respects  by  the  Inheritance  Act  (3  &  4  Will.  IV.,  c. 
106).  The  2d,  3d,  4th.  and  7th  canons  remain  unaltered.  The  1st  has 
been  changed  by  deriving  the  descent  from  the  last  purchaser  instead  of 
tlie  person  last  actually  seised,  and  by  admitting  lineal  ancestors  in  default 

.of  lineal  descendants.  This  latter  amendment  alters  the  5th  canon  also 
by  preferring  lineal  ancestors  over  collaterals.  The  6th  canon  has  been 
changed  by  admitting  the  half-blood  next  after  the  whole  blood  in  the 

*ame  degree. — En. 


DESCENT.  455 

or  relation  of  persons  descended  from  the  same  stock  or 
common  ancestor.  This  consanguinity  is  either  lineal  or 
collateral. 

Lineal  consanguinity  is  that  which  subsists  between  per- 
sons, of  whom  one  is  descended  in  a  direct  line  from  the 
other,  as  between  John  Stiles  and  his  father,  grandfather, 
great-grandfather,  and  so  upwards  in  the  direct  ascending 
line ;  or  between  John  Stiles  and  his  son,  grandson,  great- 
grandson,  and  so  downwards  in  the  direct  descending  line. 
Every  generation,  in  this  lineal  direct  consanguinity,  con- 
stitutes a  different  degree,  reckoning  either  upwards  or 
downwards  :  the  father  of  John  Stiles  is  related  to  him  in  the 
first  degree,  and  so  likewise  is  his  son ;  his  grandsire  and 
grandson  in  the  second ;  his  great-grandsire  and  great- 
grandson  in  the  third.  This  is  the  only  natural  way  of  reck- 
oning the  degrees  in  the  direct  line,  and  therefore  univer- 
sally obtains,  as  well  in  the  civil  and  canon  as  in  the  com- 
mon law.  .  .  . 

Collateral  kindred  answers  to  the  same  description :  col- 
lateral relations  agreeing  with  the  lineal  in  this,  that  they 
descend  from  the  same  stock  or  ancestor;  but  differing  in 
this,  that  they  do  not  descend  one  from  the  other.  Col- 
lateral kinsmen  are  such  then  as  lineally  spring  from  one 
and  the  same  ancestor,  who  is  the  stirps,  or  root,  the  stipes, 
trunk,  or  common  stock,  from  whence  these  relations  are 
branched  out.  As  if  John  Stiles  hath  two  sons,  who  have 
each  a  numerous  issue ;  both  these  issues  are  lineally  de- 
scended from  John  Stiles  as  their  common  ancestor;  and 
they  are  collateral  kinsmen  to  each  other,  because  they  are 
all  descended  from  this  common  ancestor,  and  all  have  a 
portion  of  his  blood  in  their  veins,  which  denominates  them 
consanguineos.  .  .  . 

The  method  of  Computing  these  degrees  in  the  canon  law 
which  our  law  has  adopted,  is  as  follows :  we  begin  at  the 
common  ancestor,  and  reckon  downwards:  and  in  whatso- 
ever degree  the  two  persons,  or  the  most  remote  of  them,  is 
distant  from  the  common  ancestor,  that  is  the  degree  in 


456   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

which  they  are  related  to  each  other.  Thus  Titius  and  his 
brother  are  related  in  the  first  degree ;  for  from  the  father 
to  each  of  them  is  counted  only  one ;  Titius  and  his  nephew 
are  related  in  the  second  degree ;  for  the  nephew  is  two  de- 
grees removed  from  the  common  ancestor;  viz.,  his  own 
grandfather,  the  father  of  Titius. 

4  KENT.  COM.,  374.  The  English  law  of  descents  is  gov- 
erned by  a  number  of  rules,  or  canons  of  inheritance,  which 
have  been  established  for  ages,  and  have  regulated  the 
transmission  of  the  estate  from  the  ancestor  to  the  heir,  in 
so  clear  and  decided  a  manner  as  to  preclude  all  uncertainty 
as  to  the  course  which  the  descent  is  to  take.  But,  in  these 
United  States  the  English  common  law  of  descents,  in  its 
most  essential  features,  has  been  universally  rejected,  and 
each  State  has  established  a  law  of  descents  for  itself.  The 
laws  of  the  individual  States  may  agree  in  their  great  out- 
lines, but  they  differ  exceedingly  in  the  details.  There  is  no 
entire,  though  there  is  an  essential  uniformity  on  this  sub- 
ject.1 .  .  . 

1  In  general  it  may  be  said  that  in  the  United  States  descent  is  traced 
neither  from  the  person  last  actually  seised,  nor  from  the  last  purchaser, 
but  from  the  person  last  entitled ;  that  primogeniture  and  the  preference 
of  the  male  over  the  female  descendant  has  been  abolished,  all  the  chil- 
dren or  heirs  of  the  same  degree,  male  and  female,  being  entitled  to  share 
equally  in  the  inheritance.  Representation,  however,  has  been  retained 
in  most  of  the  States  (see  canon  4).  Generally,  also,  the  disability  of 
the  half-blood  has  been  wholly  or  partially  removed,  and  ancestors  (at 
least  the  father  and  mother)  admitted  after  the  lineal  descendants  and 
before  the  collaterals.  Illegitimacy  is  still  a  bar,  though  in  some  of  the 
States  bastards  inherit  from  the  mother,  and  in  most  of  the  States  they  be- 
come legitimate  upon  the  intermarriage  of  their  parents  (N.  Y.  Laws, 
1896,  c.  272,  §  18). — ED. 


CHAPTER  II. 

DISSEISIN. 

BRACTON,  162,  163.  But  if  a  disseysine  has  been  made  in 
any  of  the  above  ways,  the  first  and  principal  remedy  is  of 
this  kind,  namely,  that  he  who  has  been  disseysed  may  re- 
ject the  spoiler  by  his  own  strength  if  he  can,  or  by  strength 
which  he  has  called  in  or  recalled,  provided  no  interval  has 
elapsed,  the  disseysine  or  misdeed  being  flagrant.  .  .  . 
But  if  he  can  in  no  way  expel  him,  he  must  have  recourse  to 
the  power  of  a  superior  that  he  may  be  allowed  to  acquire  it 
peaceably  and  to  use  it  quietly.  Forthwith  to  repel  "force 
by  force"  is  to  do  so  as  soon  as  it  can  be  known  that  force 
has  been  used,  before  that  he,  against  whom  it  has  been 
used,  has  betaken  himself  to  a  contrary  act.  .  .  .  But 
we  must  see  what  is  meant  by  the  term  "forthwith,"  and 
within  what  time.  But  the  time  is  not  defined,  but  it  is  pre- 
sumed that  he  ought  to  have  so  much  time,  as  he  would 
have  if  he  were  impleaded  respecting  the  property,  namely, 
fifteen  days,  which  right,  however,  he  does  not  enjoy  at 
present.  We  must  likewise  see  whether  the  person  dis- 
seysed was  present  or  absent  at  the  time  of  the  disseysine,  or 
whether  he  was  himself  personally  ejected,  or  his  agent  or 
his  household,  or  whilst  he  was  absent  another  person  entered 
into  his  possession  then  vacant.  I  mean  vacant  corporeally, 
although  not  mentally.  But  if  he  was  present  at  the  time  of 
the  disseysine,  then  let  him  expel  the  disseysor  immediately 
and  on  the  same  day,  if  he  can.  .  .  .  But  if  he  has  not 
chosen  such  a  way,  let  him  do  on  the  morrow  or  on  the  third 
or  the  fourth  day  or  further  with  due  continuation,  what  he 
ought  to  have  done  on  the  first  day :  because  if  he  could  not 
reject  him  on  the  first  day,  he  may  be  able  on  the  morrow 


458   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

to  rally  his  forces,  to  collect  arms,  and  to  invoke  the  aid  of 
friends ;  but  if  he  has  waited  for  a  long  time,  he  seems  there- 
by to  dissemble  the  injury,  and  thereby  altogether  to  blot  it 
out.  .  .  .  But  if  he  has  been  absent  from  whatever 
necessary  cause  of  common  business,  or  of  a  journey,  or 
from  any  other  cause,  it  will  be  requisite  to  distinguish  the 
distance  of  places  and  the  times,  or  the  diligence  or  the  neg- 
ligence of  the  person  disseysed,  according  as  he  has  been 
near  in  the  same  county,  or  far  off  in  another  county,  or 
elsewhere,  provided  he  is  within  the  realm.  Let  "far"  and 
"further"  be  distinguished,  at  what  time  he  could  have 
known  concerning  disseysine,  and  not  the  time  at  which  he 
did  know  it,  and  in  which  case  reasonable  days'  journeys  are 
to  be  computed  for  him  in  coming,  so  that,  reasonable  delays 
having  been  allowed  to  him,  within  the  fourth  day  or  fur- 
ther upon  special  cause  as  above  explained  he  may  expel  the 
disseysor,  which  will  be  sufficiently  immediate,  since  time 
does  not  run  against  him  except  from  the  time  of  his  knowl- 
edge, and  from  which  after  knowledge  he  could  come  con- 
veniently. . 

STAT.  3  EDW.  I.  (1275),  c.  39.  And  forasmuch  as  it  is 
long  Time  passed  since  the  Writs  undernamed  were  lim- 
ited; it  is  provided,  That  in  conveighing  a  Descent  in  a  Writ 
of  Right,  none  shall  presume  to  declare  of  the  Seisin  of  his 
Ancestor  further,  or  beyond  the  time  of  King  Richard, 
Uncle  to  King  Henry,  Father  to  the  King  that  now  is ;  and 
that  a  Writ  of  Novel  disseisin,  of  Partition,  which  is  called 
Nuper  obiit,  have  their  Limitation  since  the  first  Voyage  of 
King  Henry,  Father  to  the  King  that  now  is,  into  Gascoin. 
And  that  Writs  of  Mortdancestor,  of  Cosinage,  of  Aiel,  of 
Entry,  and  of  Nativis,  have  their  Limitation  from  the  Cor- 
onation of  the  same  King  Henry,  and  not  before.  Never- 
theless all  Wrrits  purchased  now  by  themselves  or  to  be  pur- 
chased between  this  and  the  Feast  of  St.  John,  for  one  Year 
compleat,  shall  be  pleaded  from  as  long  Time  as  heretofore 
they  have  been  used  to  be  pleaded. 


DISSEISIN.  459 

STAT.  5  RICH.  II.  (1381),  c.  7.  And  also  the  King  de- 
fendeth,  That  none  from  henceforth  make  any  entry  into 
any  lands  and  tenements,  but  in  case  where  entry  is  given 
by  the  law ;  and  in  such  case  not  with  strong  hand,  nor  with 
multitude  of  people,  but  only  in  peaceable  and  easy  manner. 
(2)  And  if  any  man  from  henceforth  do  to  the  contrary, 
and  thereof  be  duly  convict,  he  shall  be  punished  by  im- 
prisonment of  his  body,  and  thereof  ransomed  at  the  King's 
will. 

LIT.,  §  279.  And  note  that  disseisin  is  properly  where  a 
man  entreth  into  any  lands  or  tenements  where  his  entry  is 
not  congeable,  and  ousteth  him  which  hath  the  freehold,  &c. 

§  448.  Freehold  in  law  is,  as  if  a  man  disseiseth  another, 
and  dieth  seised,  whereby  the  tenements  descend  to  his 
sonne,  albeit  that  his  sonne  doth  not  enter  into  the  tene- 
ments, yet  hee  hath  a  freehold  in  law,  which  by  force  of  the 
discent  is  cast  upon  him,  and  therefore  a  release  made  to 
him,  so  being  seised  of  a  freehold  in  law,  is  good  enough ; 
and  if  he  taketh  wife  being  so  seised  in  law,  although  he 
never  enter  in  deed,  and  dieth,  his  wife  shal  be  endowed. 

§  385.  Discents  which  toll  entries  are  in  two  manners,  to 
wit,  where  the  discent  is  in  fee,  or  in  fee  taile.  Discents  in 
fee  which  toll  entries  are,  as  if  a  man  seised  of  certaine  lands 
or  tenements  is  by  another  disseised,  and  the  disseisor  hath 
issue,  and  dieth  of  such  estate  seised,  now  the  lands  discend 
to  the  issue  of  the  disseisor  by  course  of  law,  as  heire  unto 
him.  And  because  the  law  cast  the  lands  or  tenements  upon 
the  issue  by  force  of  the  discent,  so  as  the  issue  commeth 
to  the  lands  by  course  of  law,  and  not  by  his  owne  act,  the 
entrie  of  the  disseisee  is  taken  away,  and  he  is  put  to  sue  a 
writ  of  entrie  sur  disseisin  against  the  heire  of  the  disseisor, 
to  recover  the  land. 

§  414.  Continuall  claim  is  where  a  man  hath  right  and 
title  to  enter  into  any  lands  or  tenements  whereof  another 
is  seised  in  fee,  or  in  fee  tail,  if  hee  which  hath  title  to  enter 
makes  continuall  claime  to  the  lands  or  tenements  before  the 


460   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

dying  seised  of  him  which  holdeth  the  tenements,  then  al- 
beit that  such  tenant  dieth  thereof  seised,  and  the  lands  or 
tenements  descend  to  his  heire,  yet  may  he  who  hath  made 
such  continual  claime,  or  his  heire,  enter  into  the  lands  or 
tenements  so  descended,  by  reason  of  the  continuall  claime 
made,  notwithstanding  the  discent.  As  in  case  that  a  man 
bee  disseised,  and  the  disseisee  makes  continuall  claime  to 
the  tenements  in  the  life  of  the  disseisor,  although  that  the 
disseisor  dieth  seised  in  fee,  and  the  land  descend  to  his 
heire,  yet  may  the  disseisee  enter  upon  the  possession  of  the 
heire,  notwithstanding  the  discent. 

§  415.  In  the  same  manner  it  is,  if  tenant  for  life  alien  in 
fee,  hee  in  the  reversion  or  he  in  the  remainder  may  enter 
upon  the  alienee.  And  if  such  alienee  dieth  seised  of  such 
estate  without  continuall  claime  made  to  the  tenements,  be- 
fore the  dying  seised  of  the  alienee,  and  the  lands  by  reason 
of  the  dying  seised  of  the  alienee  descend  to  his  heire,  then 
cannot  he  in  the  reversion  nor  hee  in  the  remainder  enter. 
But  if  hee  in  the  reversion  or  in  the  remainder,  who  hath 
cause  to  enter  upon  the  alienee,  make  continuall  claime  to 
the  land  before  the  dying  seised  of  the  alienee,  then  such  a 
man  may  enter  after  the  death  of  the  alienee,  as  well  as  he 
might  in  his  life-time. 

§  419.  The  second  thing  to  be  understood  is,  that  if  a 
man  hath  title  to  enter  into  any  lands  or  tenements,  if  he 
dares  not  enter  into  the  same  lands  or  tenements,  nor  into 
any  parcell  thereof  for  doubt  of  beating,  or  for  doubt  of 
mayming,  or  for  doubt  of  death,  if  he  goeth  and  ap- 
proach as  neere  to  the  tenements  as  hee  dare  for  such 
doubt,  and  by  word  claime  the  lands  to  bee  his,  presently  by 
such  claime  he  hath  a  possession  and  seisin  in  the  lands,  as 
well  as  if  hee  had  entred  in -deed,  although  hee  never  had 
possession  or  seisin  of  the  same  lands  or  tenements  before 
the  said  claime. 

Co.  LIT.,  253,  &.  Here  is  to  be  observed,  that  there  be 
two  manner  of  entries,  viz.,  an  entry  in  deed,  and  an  entry 


DISSEISIN.  461 

in  law.  An  entry  in  deed  is  sufficiently  knowne.  An  entry 
in  law  is  when  such  a  claime  is  made  as  is  here  expressed, 
which  entry  in  law  is  as  strong  and  as  forcible  in  law  as  an 
entry  in  deed,  and  that  as  well  where  the  lands  are  in  the 
hands  of  one  by  title  as  by  wrong.  And  therefore  upon  such 
an  entry  in  law  an  assise  doth  lie,  as  well  as  upon  an  entry 
in  deed,  and  such  an  entry  in  law  shall  avoid  a  warranty. 

LIT.,  §  422.  And  if  his  adversary  who  occupieth  the  land 
dieth  seised  in  fee,  or  in  fee  taile,  within  the  yeare  and  a 
day  after  such  claime,  whereby  the  lands  descend  to  his 
sonne  as  heire  to  him,  yet  may  hee  which  make  the  claime 
enter  upon  the  possession  of  the  heire,  &c. 

§  423.  But  in  this  case  after  the  yeare  and  the  day  that 
such  claime  was  made,  if  the  father  then  died  seised  the 
morrow  next  after  the  yeare  and  the  day,  or  any  other  day 
after,  &c.,  then  cannot  hee  which  made  the  claime  enter; 
and  therefore  if  hee  which  made  the  claime  will  be  sure  at 
all  times  that  his  entrie  shall  not  be  taken  away  by  such 
discent,  &c.,  it  behoveth  him  that  within  the  yeare  and  the 
day  after  the  first  claime  made,  to  make  another  claime  in 
forme  aforesaid,  and  within  the  yeare  and  the  day  after  the 
second  claime  made,  to  make  the  third  claime  in  the  same 
manner,  and  within  the  yeare  and  the  day  after  the  third 
claime  to  make  another  claime,  and  so  over,  that  is  to  say, 
to  make  a  claime  within  everie  yeare  and  day  next  after 
everie  claime  made  during  the  life  of  his  adversarie,  and 
then  at  what  time  soever  his  adversarie  dieth  seised,  his 
entrie  shall  not  be  taken  away  by  any  discent.  And  such 
claime  in  such  manner  made  is  most  commonly  taken  and 
named  Continuall  Claime  of  him  which  maketh  the  claime. 

2  BL.  COM.,  195-199.  A  title  is  thus  defined  by  Sir  Ed- 
ward Coke:1  Titulus  est  justa  causa  possidendi  id  quod 
nostrum  est:  or,  it  is  the  means  whereby  the  owner  of  lands 
hath  the  just  possession  of  his  property. 

1  Inst.  345. 


462   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

There  are  several  stages  or  degrees  requisite  to  form  a 
complete  title  to  lands  and  tenements.  We  will  consider 
them  in  a  progressive  order. 

I.  The  lowest  and  most  imperfect  degree  of  title  consists 
in  the  mere  naked  possession,  or  actual  occupation  of  the 
estate ;  without  any  apparent  right,  or  any  shadow  or  pre- 
tence of  right,  to  hold  and  continue  such  possession.     This 
may  happen,  when  one  man  invades  the  possession  of  an- 
other, and  by  force  or  surprise  turns  him  out  of  the  occupa- 
tion of  his  lands;  which  is  termed  a  disseisin,  being  a  de- 
privation of  that  actual  seisin,  or  corporal  freehold  of  the 
lands,  which  the  tenant  before  enjoyed.     Or  it  may  happen 
that  after  the  death  of  the  ancestor  and  before  the  entry  of 
the  heir,  or  after  the  death  of  a  particular  tenant  and  be- 
fore the  entry  of  him  in  remainder  or  reversion,  a  stranger 
may  contrive  to  get  possession  of  the  vacant  land,  and  hold 
out  him  that  had  a  right  to  enter.     In  all  which  cases,  and 
many  others  that  might  be  here  suggested,  the  wrongdoer 
has  only  a  mere  naked  possession,  which  the  rightful  owner 
may  put  an  end  to,  by  a  variety  of  legal  remedies,  as  will 
more  fully  appear  in  the  third  book  of  these  commentaries. 
But  in  the  meantime,  till  some  act  .be  done  by.  the  rightful 
owner  to  devest  this  possession  and  assert  his  title,  such 
actual  possession  is,  prima  facie,  evidence  of  a  legal  title  in 
the  possessor ;  and  it  may,  by  length  of  time,  and  negligence 
of  him  who  hath  the  right,  by  degrees  ripen  into  a  perfect 
and  indefeasible  title.     And,  at  all  events,  without  such  ac- 
tual possession  no  title  can  be  completely  good. 

II.  The  next  step  to  a  good  and  perfect  title  is  the  right 
of  possession,  which  may  reside  in  one  man,  while  the  actual 
possession  is  not  in  himself,  but  in  another.     For  if  a  man 
be  disseised,  or  otherwise  kept  out  of  possession,  by  any 
of  the  means  before  mentioned,  though  the  actual  posses- 
sion be  lost,  yet  he  has  still  remaining  in  him  the  right  of 
possession ;  and  may  exert  it  whenever  he  thinks  proper,  by 
entering  upon  the  disseisor,  and  turning  him  out  of  that 
occupancy  which  he  has  so  illegally  gained.     But  this  right 


DISSEISIN.  463 

of  possession  is  of  two  sorts :  an  apparent  right  of  posses- 
sion, which  may  be  defeated  by  proving  a  better;  and  an 
actual  right  of  possession,  which  will  stand  the  test  against 
all  opponents.  Thus  if  the  disseisor,  or  other  wrongdoer, 
dies  possessed  of  the  land  whereof  he  so  became  seised  by 
his  own  unlawful  act,  and  the  same  descends  to  his  heir; 
now,  by  the  common  law  the  heir  hath  obtained  an  appar- 
ent right,  though  the  actual  right  of  possession  resides  in 
the  person  disseised ;  and  it  shall  not  be  lawful  for  the  per- 
son disseised  to  devest  this  apparent  right  by  mere  entry  or 
other  act  of  his  own,  but  only  by  an  action  at  law :  for,  until 
the  contrary  be  proved  by  legal  demonstration,  the  law  will 
rather  presume  the  right  to  reside  in  the  heir  whose  ancestor 
died  seised,  than  in  one  who  has  no  such  presumptive  evi- 
dence to  urge  in  his  own  behalf.  Which  doctrine  in  some 
measure  arose  from  the  principles  of  the  feodal  law,  which, 
after  feuds  became  hereditary,  much  favored  the  right  of 
descent ;  in  order  that  there  might  be  a  person  always  upon 
the  spot  to  perform  the  feodal  duties  and  services ;  and 
therefore  when  a  feudatory  died  in  battle,  or  otherwise,  it 
presumed  always  that  his  children  were  entitled  to  the  feud, 
till  the  right  was  otherwise  determined  by  his  fellow-sol- 
diers and  fellow-tenants,  the  peers  of  the  feodal  court.  But 
if  he,  who  has  the  actual  right  of  possession,  puts  in  his 
claim,  and  brings  his  action  within  a  reasonable  time,  and 
can  prove  by  what  unlawful  means  the  ancestor  became 
seised,  he  will  then  by  sentence  of  law  recover  that  posses- 
sion, to  which  he  hath  such  actual  right.  Yet,  if  he  omits  to 
bring  this  his  possessory  action  within  a  competent  time,  his 
adversary  may  imperceptibly  gain  an  actual  right  of  pos- 
session, in  consequence  of  the  other's  negligence.  And  by 
this,  and  certain  other  means,  the  party  kept  out  of  posses- 
sion may  have  nothing  left  in  him,  but  what  we  are  next  to 
speak  of,  viz. : 

III.  The  mere  right  of  property,  the  jus  proprietatis, 
without  either  possession  or  even  the  right  of  possession. 
This  is  frequently  spoken  of  in  our  books  under  the  name  of 


464   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

the  mere  right,  jus  merum;  and  the  estate  of  the  owner  is 
in  such  cases  said  to  be  totally  devested,  and  put  to  a  right. 
A  person  in  this  situation  may  have  the  true  ultimate  prop- 
erty of  the  lands  in  himself :  but  by  the  intervention  of  cer- 
tain circumstances,  either  by  his  own  negligence,  the  solemn 
act  of  his  ancestor,  or  the  determination  of  a  court  of  justice, 
the- presumptive  evidence  of  that  right  is  strongly  in  favour 
of  his  antagonist;  who  has  thereby  obtained  the  absolute 
right  of  possession.  As,  in  the  first  place,  if  a  person  dis- 
seised, or  turned  out  of  possession  of  his  estate,  neglects  to 
pursue  his  remedy  within  the  time  limited  by  law :  by  this 
means  the  disseisor  or  his  heirs  gain  the  actual  right  of  pos- 
session :  for  the  law  presumes  that  either  he  had  a  good 
right  originally,  in  virtue  of  which  he  entered  on  the  lands 
in  question,  or  that  since  such  his  entry  he  has  procured  a 
sufficient  title ;  and,  therefore,  after  so  long  an  acquiescence, 
the  law  will  not  suffer  his  possession  to  be  disturbed  without 
inquiring  into  the  absolute  right  of  property.  Yet  still,  if 
the  person  disseised  or  his  heir  hath  the  true  right  of  prop- 
erty remaining  in  himself,  his  estate  is  indeed  said  to  be 
turned  into  a  mere  right;  but,  by  proving  such  his  better 
right,  he  may  at  length  recover  the  lands.  Again,  if  a  ten- 
ant in  tail  discontinues  his  estate-tail,  by  alienating  the  lands 
to  a  stranger  in  fee,  and  dies ;  here  the  issue  in  tail  hath  no 
right  of  possession,  independent  of  the  right  of  property: 
for  the  law  presumes  prima  facie  that  the  ancestor  would 
not  disinherit,  or  attempt  to  disinherit  his  heirs,  unless  he 
had  power  so  to  do;  and  therefore,  as  the  ancestor  had  in 
himself  the  right  of  possession,  and  has  transferred  the 
same  to  a  stranger,  the  law  will  not  permit  that  possession 
now  to  be  disturbed,  unless  by  showing  the  absolute  right 
of  property  to  reside  in  another  person.  The  heir  therefore 
in  this  case  has  only  a  mere  right,  and  must  be  strictly 
held  to  the  proof  of  it  in  order  to  recover  the  lands. 
Lastly,  if  by  accident,  neglect  or  otherwise,  judgment  is 
given  for  either  party  in  any  possessory  action  (that  is, 
such  wherein  the  right  of  possession  only,  and  not  that 


DISSEISIN.  465 

of  property,  is  contested),  and  the  other  party  hath  in- 
deed in  himself  the  right  of  property,  this  is  now  turned  to 
a  mere  right;  and  upon  proof  thereof  in  a  subsequent  ac- 
tion, denominated  a  writ  of  right,  he  shall  recover  his  seisin 
of  the  lands. 

Thus,  if  a  disseisor  turns  me  out  of  possession  of  my 
lands,  he  thereby  gains  a  mere  naked  possession,  and  I  still 
retain  the  right  of  possession  and  right  of  property.  If  the 
disseisor  dies,  and  the  lands  descend  to  his  son,  the  son 
gains  an  apparent  right  of  possession;  but  I  still  retain  the 
actual  right  both  of  possession  and  property.  If  I  acquiesce 
for  thirty  years  without  bringing  any  action  to  recover  pos- 
session of  the  lands,  the  son  gains  the  actual  right  of  posses- 
sion, and  I  retain  nothing  but  the  mere  right  of  property. 
And  even  this  right  of  property  will  fail,  or  at  least  it  will 
be  without  a  remedy,  unless  I  pursue  it  within  the  space  of 
sixty  years.  So  also  if  the  father  be  tenant  in  tail,  and 
alienes  the  estate  tail  to  a  stranger  in  fee,  the  alienee  there- 
by gains  the  right  of  possession,  and  the  son  hath  only  the 
mere  right  or  right  of  property.  And  hence  it  will  follow 
that  one  man  may  have  the  possession,  another  the  right  of 
possession,  and  a  third  the  right  of  property.  For  if  a  ten- 
ant in  tail  infeoft's  A.  in  fee-simple,  and  dies,  and  B.  dis- 
seises A.;  now  B.  will  have  the  possession,  A.  the  right  of 
possession,  and  the  issue  in  tail  the  right  of  property:  A. 
may  recover  the  possession  against  B.;  and  afterward  the 
issue  in  tail  may  evict  A.,  and  unite  in  himself  the  posses- 
sion, the  right  of  possession,  and  also  the  right  of  property. 
In  which  union  consists, 

IV.  A  complete  title  to  landsr  tenements  and  heredita- 
ments. For  it  is  an  ancient  maxim  of  the  law  that  no  title 
is  completely  good  unless  the  right  of  possession  be  joined 
with  the  right  of  property ;  which  right  is  then  denominated 
a  double  right,  jus  duplicatum,  or  droit  droit.  And  when 
to  this  double  right  the  actual  possession  is  also  united, 
there  is,  according  to  the  expression  of  Fleta,1  juris  et 

'L.3,  c.  15,  §5- 


466   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

seisinac  conjunctio,  then,  and  then  only,  is  the  title  com- 
pletely legal. 

DIGBY,  HIST.  REAL  PROP.,  Ch.  II.,  §  9.  By  seisin  is 
meant,  as  has  already  been  pointed  out,  possession  as  of 
freehold,  that  is,  the  possession  which  a  freeholder  could 
assert  and  maintain  by  appeal  to  law.  There  was  in  fact 
no  other  kind  of  legal  possession  known  at  this  early  time. 
In  later  times  the  word  seisin  comes  to  be  distinct  from  pos- 
session, the  latter  being  applicable  to  the  possession  of  a 
leaseholder  or  copyholder,  the  former  being  confined  to  the 
possession  of  a  freeholder.  It  should,  however,  be  observed 
that  it  was  by  no  means  necessary  for  a  person  to  be  seised 
as  of  right.  There  was  a  seisin  as  of  right,  and  a  seisin  as 
of  wrong.  If  the  rightful  freeholder  was  ousted  and  in  fact 
lost  his  possession,  he  was  disseised  or  put  out  of  seisin,  and 
the  wrongdoer  or  disseisor  was  seised  in  his  place,  holding 
by  wrong  the  estate  from  which  he  had  ousted  the  rightful 
possessor.  He  had  in  fact  a  "defeasible  title,"  and  for  many 
purposes  acts  done  by  him  held  good  as  if  he  had  been 
rightfully  seised.  A  person  so  seised  by  wrong  was  of 
course  liable  to  be  turned  out  by  the  rightful  owner  either  by 
actual  entry  upon  him,  or  by  process  of  law.  A  complicated 
system  of  rules  grew  up  as  to  the  circumstances  and  con- 
ditions under  which  this  right  of  actual  entry  existed,  when 
it  ceased,  and  when  the  only  remedy  was  by  calling  in  aid 
the  action  of  the  tribunals. 

*****  *  * 

In  the  great  majority  of  cases  when  litigation  arose  as  to 
the  right  to  land,  it  would  be  sufficient  to  decide  which  of 
the  two  litigants  had  the  right  of  immediate  actual  posses- 
sion ;  or  rather,  whether  the  plaintiff  could  make  out  a  right 
to  the  possession  as  against  the  person  actually  in  possession. 
It  was  comparatively  seldom  necessary  to  have  recourse  to 
the  higher  remedy  of  a  writ  of  right  in  order  to  decide  which 
of  the  two  had  the  greater  right  to  the  land.  These  posses- 
sory actions,  as  the  former  class  were  called,  must  be 


DISSEISIN.  467 

brought  within  a  fixed  period,  and  different  limits  were 
from  time  to  time  assigned. 

The  writ  of  Assize  of  mort  d'ancestor  was  perhaps  in- 
stituted by  the  ordinance  called  the  Assize  of  Northampton, 
A.D.  1176,  and  was  applicable  only  to  the  particular  case 
where,  upon  the  death  of  the  demandant's  father  or  mother, 
brother  or  sister,  uncle  or  aunt,  nephew  or  niece,  some  per- 
son other  than  the  lawful  heir  had  entered  upon  the  land. 
If  the  demandant  could  prove  that  the  ancestor  died  seised 
"in  his  demesne  as  of  fee," and  that  he  (the  demandant)  was 
the  right  heir,  the  result  of  the  decision  of  these  points  in  his 
favor  would  be  the  establishment  of  the  right  of  the  de- 
mandant to  the  possession  as  against  the  tenant.  Similar 
writs,  varied  in  form  to  suit  the  circumstances,  and  called 
by  different  names,  were  used  for  the  recovery  of  the  posses- 
sion by  a  person  claiming  as  heir  of  a  more  distant  relation. 
It  will  be  seen  from  the  form  of  the  writ  that  this  proceed- 
ing would  not  be  applicable  when  lands  had  been  devised  by 
will,  and  therefore  after  the  statutes  conferring  the  power  of 
devising  lands  by  will  this  remedy  was  no  longer  available. 

The  Assize  of  novel  disseisin  was  applicable  where  the  de- 
mandant himself  had  been  turned  out  of  possession.  .  .  . 
If  successful,  the  demandant  would  in  this  proceeding  re- 
cover his  possession,  and  also  damages  for  the  injury  sus- 
tained. This  was  the  usual  remedy  for  the  recovery  of  the 
possession  of  lands.  In  certain  cases  which  need  not  be  here 
specified,  it  was  necessary  to  resort  to  the  writ  of  right.  But 
as  a  rule  all  practical  purposes  were  attained  by  means  of 
one  of  the  forms  of  action  adapted  to  trying  the  right  of 
possession.  The  remedy  by  the  Assizes  of  mort  d'ancestor 
and  novel  disseisin  was  only  applicable  in  particular  cases. 
The  remedy  for  the  recovery  of  possession,  applicable  to  all 
cases,  whether  falling  under  the  two  classes  just  mentioned 
or  not,  was  the  writ  of  entry.  The  law  on  this  subject  (now 
obsolete)  is  of  far  too  intricate  and  complicated  a  character 
to  be  discussed  here.  The  remedy  by  assize  was  preferred 
when  applicable,  as  being  more  expeditious. 


468   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

LEAKE.  LAND  LAW,  56.  Disseisin  of  the  tenant  of  a  par- 
ticular estate  disseised  or  divested  all  the  estates  in  remain- 
der or  reversion,  and  converted  them  into  mere  rights  of  en- 
try, exercisable  in  their  order  of  succession.  The  tenant  him- 
self of  the  particular  estate  whether  for  life  or  for  years, 
having  the  actual  seisin,  had  it  in  his  power  to  make  a  feoff- 
ment  to  another  by  livery,  which  effectually  conveyed  the 
fee,  if  it  in  terms  imported  to  do  so,  irrespectively  of  his 
own  estate  or  interest ;  and  such  feoffment  disseised  all  the 
estates  in  remainder  or  in  reversion  dependent  upon  his 
seisin  and  converted  them  into  rights  of  entry.  .  .  . 

ID.,  58-60.  An  entry  on  the  land  within  the  time  allowed 
by  law  restored  the  seisin,  and,  if  made  by  the  tenant  of  a 
particular  estate,  it  restored  or  revested  the  estates  in  re- 
mainder or  reversion,  which  were  dependent  upon  the  same 
title.  Hence  a  right  of  entry  was  sufficient  to  preserve  a 
contingent  remainder.  The  right  of  entry,  arising  upon  a 
disseisin,  was  lost  in  certain  events;  as  by  the  seisin  being 
cast  by  descent  upon  the  heir  of  the  disseisor,  which  was 
technically  called  a  descent  cast;  also  by  an  alienation  of  the 
fee  by  the  disseisor  to  another,  which  was  called  a  discon- 
tinuance of  the  possession.  On  the  other  hand,  the  right  of 
^ntry  might  be  kept  alive  against  a  descent  cast  by  the  proc- 
ess of  continual  claim.  Where  the  right  of  entry  was  lost 
there  remained  a  mere  right  of  action,  to  be  prosecuted 
within  certain  limits  of  time  in  the  form  of  real  action  pro- 
vided for  the  circumstances  of  the  case. 

The  doctrines  concerning  rigbts  of  entry  and  of  action 
and  the  proceedings  in  real  actions  were  highly  technical 
and  elaborate,  and  formed  a  large  and  complicated  branch 
of  the  law  of  real  property  until  the  amendments  of  the  law 
made  by  the  statute  3  &  4  W.  IV.,  c.  27.  By  that  statute, 
s.  36,  real  actions  were  abolished,  and  the  action  of  eject- 
ment was  left  as  the  only  and  the  comparatively  simple  rem- 
edy at  law  for  the  recovery  of  the  possession  of  land.  By 
the  same  statute  the  right  of  entry  or  action  is  no  longer  de- 
feated by  a  descent  cast  or  a  discontinuance  (s.  39)  ;  and 


DISSEISIN.  469 

it  is  exempted  from  all  other  casualties  except  lapse  of  time. 
But  it  must  be  prosecuted  within  twenty  years  next  after 
the  accrual  of  the  right  (s.  2)  ;  subject  to  the  provisions 
of  the  statute  in  the  case  of  disabilities  in  the  person  entitled 
(ss.  16-19). 

N.  Y.  CODE  Civ.  PROC.,  §  365.  An  action  to  recover  real 
property,  or  the  possession  thereof,  cannot  be  maintained  by 
a  party  other  than  the  people,  unless  the  plaintiff,  his  an- 
cestor, predecessor,  or  grantor,  was  seised  or  possessed  of 
the  premises  in  question,  within  twenty  years  before  the 
commencement  of  the  action. 

§  367.  An  entry  upon  real  property  is  not  sufficient  or 
valid  as  a  claim  unless  an  action  is  commenced  thereupon, 
within  one  year  after  the  making  thereof,  and  within  twenty 
years  after  the  time  when  the  right  to  make  it  descended  or 
accrued. 

N.  Y.  REAL  PROP.  LAW,  §  225.  A  grant  of  real  property 
is  absolutely  void,  if  at  the  time  of  the  delivery  thereof  such 
property  is  in  the  actual  possession  of  a  person  claiming 
under  a  title  adverse  to  that  of  the  grantor.  .  .  . 


CHAPTER  III. 

ESCHEAT  AND  FORFEITURE. 

(a)  Escheat. 

2  BL.  COM.,  244-246.  Escheat,  we  may  remember,  was 
one  of  the  fruits  and  consequences  of  feodal  tenure.  The 
word  itself  is  originally  French  or  Norman,  in  which  lan- 
guage it  signifies  chance  or  accident ;  and  with  us  it  denotes 
an  obstruction  of  the  course  of  descent,  and  a  consequent 
determination  of  the  tenure,  by  some  unforeseen  contin- 
gency: in  which  case  the  land  naturally  results  back,  by  a 
kind  of  reversion,  to  the  original  grantor  or  lord  of  the  fee. 

Escheat  therefore  being  a  title  frequently  vested  in  the 
lord  by  inheritance,  as  being  the  fruit  of  a  seigniory  to  which 
he  was  entitled  by  descent  (for  which  reason  the  lands 
escheated  shall  attend  the  seigniory,  and  be  inheritable  by 
such  only  of  his  heirs  as  are  capable  of  inheriting  the  other), 
it  may  seem  in  such  cases  to  fall  more  properly  under  the 
former  general  head  of  acquiring  title  to  estates,  viz.,  by  de- 
scent (being  vested  in  him  by  act  of  law,  and  not  by  his  own 
act  or  agreement),  than  under  the  present,  by  purchase. 
But  it  must  be  remembered  that,  in  order  to  complete  this 
title  by  escheat,  it  is  necessary  that  the  lord  perform  an  act 
of  his  own,  by  entering  on  the  lands  and  tenements  so 
escheated,  or  suing  out  a  writ  of  escheat:  on  failure  of 
which,  or  by  doing  any  act  that  amounts  to  an  implied 
waiver  of  his  right,  as  by  accepting  homage  or  rent  of  a 
stranger  who  usurps  the  possession,  his  title  by  escheat  is 
barred.  It  is  therefore  in  some  respect  a  title  acquired  by 
his  own  act,  as  well  as  by  act  of  law.  Indeed,  this  may  also 
be  said  of  descents  themselves,  in  which  an  entry  or  other 
seisin  is  required,  in  order  to  make  a  complete  title :  and 


ESCHEAT    AND    FORFEITURE.  471 

therefore  this  distribution  of  titles  by  our  legal  writers,  into 
those  by  descent  and  by  purchase,  seems  in  this  respect 
rather  inaccurate,  and  not  marked  with  sufficient  precision: 
for,  as  escheats  must  follow  the  nature  of  the  seigniory  to 
which  they  belong,  they  may  vest  by  either  purchase  or  de- 
scent, according  as  the  seigniory  is  vested.  And,  though  Sir 
Edward  Coke  considers  the  lord  by  escheat  as  in  some  re- 
spects the  assignee  of  the  last  tenant,1  and  therefore  taking 
by  purchase ;  vet,  on  the  other  hand,  the  lord  is  more  fre- 
quently considered  as  being  ultimus  hceres,  and  .therefore 
taking  by  descent  in  a  kind  of  caducary  succession. 

The  law  of  escheats  is  founded  upon  this  single  principle, 
that  the  blood  of  the  person  last  seised  in  fee-simple  is,  by 
some  means  or  other,  utterly  extinct  and  gone ;  and,  since 
none  can  inherit  his  estate  but  such  as  are  of  his  blood  and 
consanguinity,  it  follows,  as  a  regular  consequence,  that 
when  such  blood  is  extinct,  the  inheritance  itself  must  fail : 
the  land  must  become  what  the  feodal  writers  denominate 
feudum  apertum;  and  must  result  back  again  to  the  lord  of 
the  fee,  by  whom,  or  by  those  whose  estate  he  hath,  it  was 
given. 

Escheats  are  frequently  divided  into  those  propter  de- 
fectum  sanguinis,  and  those  propter  delictum  tenentis:  the 
one  sort,  if  the  tenant  dies  without  heirs;  the  other,  if  his 
blood  be  attainted.  But  both  these  species  may  well  be  com- 
prehended under  the  first  denomination  only ;  for  he  that  is 
attainted  suffers  an  extinction  of  his  blood,  as  well  as  he 
that  dies  without  relations.  The  inheritable  quality  is  ex- 
punged in  one  instance,  and  expires  in  the  other ;  or,  as  the 
doctrine  of  escheats  is  very  fully  expressed  in  Fleta,2  "dom- 
inns  capitalis  feodi  loco  hceredis  habetur,  quoties  per  defec- 
tum  vcl  delictum  extinguitur  sangttis  tenentis." 

ID.,  251-254.  By  attainder  also,  for  treason  or  other  fel- 
ony, the  blood  of  the  person  attainted  is  so  corrupted  as  to 
be  rendered  no  longer  inheritable. 

Great  care  must  be  taken  to  distinguish  between  for- 
'i  Inst.  215.  *L.  6,  c.  i. 


472   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

feiture  of  lands  to  the  king,  and  this  species  of  escheat  to 
the  lord;  which,  by  reason  of  their  similitude  in  some  cir- 
cumstances, and  because  the  crown  is  very  frequently  the 
immediate  lord  of  the  fee,  and  therefore  entitled  to  both, 
have  been  often  confounded  together.  Forfeiture  of  lands, 
and  of  whatever  else  the  offender  possessed,  was  the  doc- 
trine of  the  old  Saxon  law,  as  a  part  of  punishment  for  the 
offence ;  and  does  not  at  all  relate  to  the  feodal  system,  nor 
is  the  consequence  of  any  seigniory  or  lordship  paramount : 
but,  being  a  prerogative  vested  in  the  crown,  was  neither 
superseded  nor  diminished  by  the  introduction  of  the  Nor- 
man tenures ;  a  fruit  and  consequence  of  which,  escheat  must 
undoubtedly  be  reckoned.  Escheat  therefore  operates  in 
subordination  to  this  more  antient  and  superior  law  of  for- 
feiture. 

The  doctrine  of  escheat  upon  attainder,  taken  singly,  is 
this :  that  the  blood  of  the  tenant,  by  the  commission  of  any 
felony  (under  which  denomination  all  treasons  were  for- 
merly comprised),  is  corrupted  and  stained,  and  the  original 
donation  of  the  feud  is  thereby  determined,  it  being  always 
granted  to  the  vassal  on  the  implied  condition  of  dum  bene 
se  gesserit.  Upon  the  thorough  demonstration  of  which 
guilt,  by  legal  attainder,  the  feodal  covenant  and  mutual 
bond  of  fealty  are  held  to  be  broken,  the  estate  instantly  falls 
back  from  the  offender  to  the  lord  of  the  fee,  and  the  inher- 
itable quality  of  his  blood  is  extinguished  and  blotted  out 
forever.  In  this  situation  the  law  of  feodal  escheat  was 
brought  into  England  at  the  Conquest ;  and  in  general  super- 
added  to  the  ancient  law  of  forfeiture.  In  consequence  of 
which  corruption  and  extinction  of  hereditary  blood,  the 
land  of  all  felons  would  immediately  revest  in  the  lord,  but 
that  the  superior  law  of  forfeiture  intervenes,  and  intercepts 
it  in  its  passage :  in  case  of  treason,  forever ;  in  case  of  other 
felony,  for  only  a  year  and  a  day ;  after  which  time  it  goes 
to  the  lord  in  a  regular  course  of  escheat,  as  it  would  have 
done  to  the  heir  of  the  felon  in  case  the  feodal  tenures  had 

* 

never  been  introduced.    And  that  this  is  the  true  operation 


ESCHEAT    AND    FORFEITURE.  473 

and  genuine  history  of  escheats  will  most  evidently  appear 
from  this  incident  to  gavelkind  lands  (which  seems  to  be 
the  old  Saxon  tenure),  that  they  are  in  no  case  subject  to 
escheat  for  felony,  though  they  are  liable  to  forfeiture  for 
treason.  .  .  . 

Hitherto  we  have  only  spoken  of  estates  vested  in  the 
offender  at  the  time  of  his  offence  or  attainder.  And  here 
the  law  of  forfeiture  stops ;  but  the  law  of  escheat  pursues 
the  matter  still  farther.  For  the  blood  of  the  tenant  being 
utterly  corrupted  and  extinguished,  it  follows  not  only  that 
all  that  he  now  has  shall  escheat  from  him,  but  also  that  he 
shall  be  incapable  of  inheriting  anything  for  the  future. 
This  may  farther  illustrate  the  distinction  between  for- 
'feiture  and  escheat.  If  therefore  a  father  be  seised  in  fee, 
and  the  son  commits  treason  and  is  attainted,  and  then  the 
father  dies :  here  the  lands  shall  escheat  to  the  lord ;  because 
the  son,  by  the  corruption  of  his  blood,  is  incapable  to  be 
heir,  and  there  can  be  no  other  heir  during  his  life ;  but 
nothing  shall  be  forfeited  to  the  king,  for  the  son  never  had 
any  interest  in  the  lands  to  forfeit.  In  this  case  the  escheat 
operates,  and  not  the  forfeiture;  but  in  the  following  in- 
stance the  forfeiture  works,  and  not  the  escheat.  As  where 
a  new  felony  is  created  by  act  of  parliament,  and  it  is  pro- 
vided (as  is  frequently  the  case)  that  it  shall  not  extend  to 
corruption  of  blood ;  here  the  lands  of  the  felon  shall  not 
escheat  to  the  lord,  but  yet  the  profits  of  them  shall  be  for- 
feited to  the  king  for  a  year  and  a  day,  and  so  long  after  as 
the  offender  lives. 

There  is  yet  a  further  consequence  of  the  corruption  and 
extinction  of  hereditary  blood,  which  is  this :  that  the  person 
attainted  shall  not  only  be  incapable  himself  of  inheriting, 
or  transmitting  his  own  property  by  heirship,  but  shall  also 
obstruct  the  descent  of  lands  or  tenements  to  his  posterity, 
in  all  cases  where  they  are  obliged  to  derive  their  title 
through  him  from  any  remoter  ancestor.  The  channel  which 
conveyed  the  hereditary  blood  from  his  ancestors  to  him,  is 
not  only  exhausted  for  the  present,  but  totally  dammed  up 


474   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

and  rendered  impervious  for  the  future.  This  is  a  refine- 
ment upon  the  ancient  law  of  feuds,  which  allowed  that  the 
grandson  might  be  heir  to  his  grandfather,  though  the  son 
in  the  intermediate  generation  was  guilty  of  felony.  But, 
by  the  law  of  England,  a  man's  blood  is  so  universally  cor- 
rupted by  attainder  that  his  sons  can  neither  inherit  to  him 
nor  to  any  other  ancestors,  at  least  on  the  part  of  their 
attainted  father.1  .  .  . 

Before  I  conclude  this  head  of  escheat,  I  must  mention 
one  singular  instance  in  which  lands  held  in  fee-simple  are 
not  liable  to  escheat  to  the  lord,  even  when  their  owner  is 
no  more,  and  hath  left  no  heirs  to  inherit  them.  And  this  is 
the  case  of  a  corporation ;  for  if  that  comes  by  any  accident 
to  be  dissolved,  the  donor  or  his  heirs  shall  have  the  land 
again  in  reversion,  and  not  the  lord  by  escheat;  which  is 
perhaps  the  only  instance  where  a  reversion  can  be  expect- 
ant on  a  grant  in  fee-simple  absolute.  But  the  law,  we  are 
told,2  doth  tacitly  annex  a  condition  to  every  such  gift  or 
grant,  that  if  the  corporation  be  dissolved,  the  donor  or 
grantor  shall  re-enter;  for  the  cause  of  the  gift  or  grant 
faileth.  This  is  indeed  founded  upon  the  self-same  prin- 
ciple as  the  law  of  escheat ;  the  heirs  of  the  donor  being  only 
substituted  instead  of  the  chief  lord  of  the  fee :  which  was 
formerly  very  frequently  the  case  in  subinfeudations,  or 
alienations  of  lands  by  a  vassal  to  be  holden  as  of  himself, 
till  that  practice  was  restrained  by  the  statute  of  quia  emp- 
tores,  18  Edw.  I.,  st.  I,  to  which  this  very  singular  instance 
still  in  some  degree  remains  an  exception.3 

1  Such  was  formerly  the  law  with  reference  to  escheat  propter  delictum 
tenentis.  After  considerable  modifications  by  statute  of  the  doctrine  of 
attainder,  the  recent  statute  33  &  34  Viet.,  c.  23,  has  totally  abolished 
forfeiture  and  escheat  (except  when  forfeiture  is  consequent  upon  out- 
lawry), and  provides  instead  for  the  appointment  of  an  adminstrator  to 
the  property  of  the  convict,  and  for  the  vesting  of  his  property  in  such- 
administrator  during  the  continuance  of  his  punishment. — Digby,  Ch.  X., 
§  3  (i). 

'Co.  Litt.  13. 

3  But  see  Gray,  Perpet.  g§  40-51  (pp.  369,  370,  supra)  where  this 
exception  is  doubted. — ED. 


ESCHEAT    AND    FORFEITURE.  475 

(&)  Forfeiture  for  Crime. 

GLANVILL,  VII.,  c.  17.  Furthermore,  if  any  one  be 
convicted  of  felony,  or  have  confessed  to  felony  in  open 
court,  he  becomes  disinherited  by  the  law  of  the  land,  and 
all  his  land  passes  to  his  lord  as  an  escheat.  It  is  to  be  ob- 
served that  if  any  such  person  holds  in  chief  from  our  lord 
the  king,  then  not  only  his  land  but  also  all  his  movable 
goods  and  chattels,  in  whosesoever  hands  they  may  be 
found,  shall  be  seised  for  the  benefit  of  our  lord  the  king, 
and  the  heir  of  such  person  shall  not  be  entitled  to  recover, 
any  of  them.  But  if  a  person,  holding  of  any  one  other  than 
the  king,  is  outlawed  or  is  convicted  of  felony,  then  too  all 
his  movable  property  shall  belong  to  the  king.  His  land 
too  shall  remain  for  one  year  in  the  hands  of  our  lord  the 
king,  but  after  the  lapse  of  a  year  the  same  land  shall  revert 
to  the  rightful  lord,  that  is  to  say,  to  him  whose  fee  it  is, 
nevertheless  with  buildings  thrown  down  and  trees  rooted 
up.  And  speaking  generally  so  often  as  any  one  has  done 
anything  or  made  any  confession  in  court  by  reason  of 
which  he  has  by  the  judgment  of  the  Court  been  disinher- 
ited, his  inheritance  reverts  as  an  escheat  to  the  lord  of  the 
fee  of  whom  it  is  held. 

MAGNA  CARTA  (1217),  c.  32.  We  will  not  hold  the  lands 
of  them  that  be  convict  of  felony  but  one  year  and  one 
day,  and  then  those  lands  shall  be  delivered  to  the  lord  of 
the  fee. 

4  BL.  COM.,  381.  By  attainder  in  high  treason  a  man  for- 
feits to  the  king  all  his  lands  and  tenements  of  inheritance, 
whether  fee-simple  or  fee-tail,  and  all  his  rights  of  entry  on 
lands  or  tenements  which  he  had  at  the  time  of  the  offence 
committed,  or  at  any  time  afterwards,  to  be  forever  vested 
in  the  crown ;  and  also  the  profits  of  all  lands  and  tenements, 
which  he  had  in  his  own  right  for  life  or  years,  so  long  as 
such  interest  shall  subsist.  This  forfeiture  relates  backwards 


476   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

to  the  time  of  the  treason  committed  :  so  as  to  avoid  all  inter- 
mediate sales  and  incumbrances,  but  not  those  before  the 
fact:  and  therefore  a  wife's  jointure  is  not  forfeitable  for 
the  treason  of  her  husband,  because  settled  upon  her  pre- 
vious to  the  treason  committed.  But  her  dower  is  forfeited 
by  the  express  provision  of  statute,  5  &  6  Edw.  VI.,  c.  II. 
And  yet  the  husband  shall  be  tenant  by  the  courtesy  of  the 
wife's  lands,  if  the  wife  be  attainted  of  treason :  for  that  is 
not  prohibited  by  the  statute.  But,  though  after  attainder 
the  forfeiture  relates  back  to  the  time  of  the  treason  com- 
mitted, yet  it  does  not  take  effect  unless  an  attainder  be  had, 
of  which  it  is  one  of  the  fruits ;  and  therefore  if  a  traitor  dies 
before  judgment  pronounced,  or  is  killed  in  open  rebellion, 
or  is  hanged  by  martial  law,  it  works  no  forfeiture  of  his 
lands :  for  he  never  was  attainted  of  treason. 

ID.,  385.  In  petit  treason  and  felony,  the  offender  also 
forfeits  all  his  chattel  interests  absolutely,  and  the  profits  of 
all  estates  of  freehold  during  life;  and  after  his  death  all 
his  lands  and  tenements  in  fee-simple  (but  not  those  in  tail) 
to  the  crown,  for  a  very  short  period  of  time :  for  the  king 
shall  have  them  for  a  year  and  a  day,  and  may  commit  there- 
in what  waste  he  pleases ;  which  is  called  the  king's  year, 
day,  and  waste.  Formerly  the  king  had  only  liberty  of  com- 
mitting waste  on  the  lands  of  felons,  by  pulling  down  their 
houses,  extirpating  their  gardens,  ploughing  their  meadows 
and  cutting  down  their  woods.  .  .  .  But  this  tending 
greatly  to  the  prejudice  of  the  public,  it  was  agreed,  in  the 
reign  of  Henry  the  First,  in  this  kingdom,  that  the  king 
should  have  the  profits  of  the  land  for  one  year  and  a  day, 
in  lieu  of  the  destruction  he  was  otherwise  at  liberty  to  com- 
mit :  and  therefore  Magna  Carta  provides  that  the  king  shall 
only  hold  such  lands  for  a  year  and  a  day,  and  then  restore 
them  to  the  lord  of  the  fee;  without  any  mention  made  of 
waste.  But  the  statute  17  Edw.  II.  de  praerogativa  regis 
seems  to  suppose  that  the  king  shall  have  his  year,  day  and 
waste ;  and  not  the  year  and  day  instead  of  waste.  Which 
Sir  Edward  Coke  (and  the  author  of  the  Mirror,  before  him) 


ESCHEAT    AND    FORFEITURE.  477 

very  justly  look  upon  as  an  encroachment,  though  a  very 
ancient  one,  of  the  royal  prerogative.  This  year,  day  and 
waste  are  now  usually  compounded  for ;  but  otherwise  they 
regularly  belong  to  the  crown;  and  after  their  expiration 
the  land  would  have  naturally  descended  to  the  heir  (as  in 
gavelkind  tenure  it  still  does),  did  not  its  feodal  quality  in- 
tercept such  descent,  and  give  it  by  way  of  escheat  to  the 
lord.  These  forfeitures  for  felony  do  also  arise  only  upon 
attainder ;  and  therefore  a  felo  de  se  forfeits  no  land  of  in- 
heritance or  freehold,  for  he  never  is  attainted  as  a  felon. 
They  likewise  relate  back  to  the  time  of  the  offence  com- 
mitted, as  well  as  forfeitures  for  treason ;  so  as  to  avoid  all 
intermediate  charges  and  conveyances.  This  may  be  hard 
upon  such  as  have  unwarily  engaged  with  the  offender :  but 
the  cruelty  and  reproach  must  lie  on  the  part,  not  of  the  law, 
but  of  the  criminal ;  who  has  thus  knowingly  and  dishon- 
estly involved  others  in  his  own  calamities. 

2  KENT  COM.,  386.  Forfeiture  of  estate  and  corruption 
of  blood,  under  the  laws  of  the  United  States,  and  including 
cases  of  treason,  are  abolished.  Forfeiture  of  property,  in 
cases  of  treason  and  felony,  was  a  part  of  the  common  law, 
and  must  exist  at  this  day  in  the  jurisprudence  of  those 
States  where  it  has  not  been  abolished  by  their  constitutions, 
or  by  statute.  Several  of  the  State  constitutions  have  pro- 
vided that  no  attainder  of  treason  or  felony  shall  work  cor- 
ruption of  blood  or  forfeiture  of  estate,  except  during  the 
life  of  the  offender  ;*  and  some  of  them  have  taken  away  the 
power  of  forfeiture  absolutely,  without  any  such  exception. 
There  are  other  State  constitutions  which  impliedly  admit 
the  existence  or  propriety  of  forfeiture  by  taking  away  the 
right  of  forfeiture  expressly  in  cases  of  suicide  and  in  the 
case  of  deodand,  and  preserving  silence  as  to  other  cases; 
and,  in  one  instance,2  forfeiture  of  property  is  limited  to  the 
cases  of  treason  and  murder. 

'Constitutions  of  Pennsylvania,  Delaware,  and  Kentucky. 
'Constitution  of  Maryland. 


4/8   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

U.  S.  CONST.,  ART.  III.,  sec.  3  (2).  The  congress 
shall  have  power  to  declare  the  punishment  of  treason, 
but  no  attainder  of  treason  shall  work  corruption  of 
blood  or  forfeiture,  except  during  the  life  of  the  person 
attainted. 

N.  Y.  PENAL  CODE,  §  710.  A  conviction  of  a  person  for 
any  crime  does  not  work  a  forfeiture  of  any  property,  real 
or  personal,  or  of  any  right  or  interest  therein.  All  for- 
feitures to  the  people  of  the  State  in  the  nature  of  deodands, 
or  in  a  case  of  suicide,  or  where  a  person  flees  from  justice, 
are  abolished. 

N.  Y.  CODE  CRIM.  PROC.,  §  814.  When,  upon  a  bench 
warrant  issued  for  the  apprehension  of  a  person  who  has 
pleaded  guilty,  or  against  whom  a  verdict  has  been  ren- 
dered, upon  an  indictment  for  treason,  it  is  duly  returned 
that  the  defendant  cannot  be  found,  the  district  attorney  of 
the  county  may  apply  to  the  court  in  which  the  conviction 
was  had  for  judgment  for  outlawry. 

§  8 1 8.  If  the  defendant  appear,  judgment  must  be  ren- 
dered against  him  upon  the  conviction.  If  he  do  not  appear, 
the  court,  upon  proof  of  the  due  publication  of  the  order, 
must  render  judgment  that  the  defendant  be  outlawed,  and 
that  all  his  civil  rights  be  forfeited. 

§  819.  The  defendant  is  thereupon  deemed  civilly  dead, 
and  forfeits  to  the  people  of  this  State  during  his  life-time, 
and  no  longer,  all  freehold  estate  in  real  property,  of  which 
he  was  seised  in  his  own  right,  at  the  time  of  committing 
the  treason,  or  at  any  time  thereafter,  and  all  his  personal 
property.' 

N.  Y.  CODE  Civ.  PROC.,  §  1977.  Whenever  the  attorney 
general  has  good  reason  to  believe  that  the  title  to.  or 
right  of  possession  of,  any  real  property,  has  vested  in  the 
people  of  the  State,  by  escheat,  or  by  conviction  or  outlawry 


ESCHEAT    AND    FORFEITURE.  479 

for  treason,  he  must  commence  an  action  of  ejectment,  to 
recover  the  property. 

(c)  Forfeiture  for  Waste. 

STAT.  MARLBOROUGH  (52  Hen.  III.,  1267),  c.  23,  sec.  2. 
Also  Fermors,  during  their  Terms,  shall  not  make  Waste, 
Sale,  nor  Exile  of  House,  Woods,  and  Men,  nor  of  any 
Thing  belonging  to  the  Tenements  that  they  have  to  ferm, 
without  special  License,  had  by  Writing  of  Covenant,  mak- 
ing mention  that  they  may  do  it ;  which  Thing  if  they  do, 
and  thereof  be  convict,  they  shall  yield  full  Damage,  and 
shall  be  punished  by  Amerciament  grievously. 

STAT.  GLOUCESTER  (6  EDVV.  I.,  1278),  c.  5.  It  is  provided 
also,  That  a  Man  from  henceforth  shall  have  a  Writ  of 
Waste  in  the  Chancery  against  him  that  holdeth  by  Law  of 
England,  or  otherwise  for  Term  of  Life,  or  for  Term  .of 
Years,  or  a  Woman  in  Dower.  (2)  And  he  which  shall  be 
attainted  of  Waste,  shall  lose  the  Thing  that  he  hath  wasted, 
and  moreover  shall  recompense  thrice  so  much  as  the  Waste 
shall  be  taxed  at. 

Co.  LIT.,  '53,  a.  An  action  of  wast  doth  lie  against  tenant 
by  the  curtesie,  tenant  in  dower,  tenant  for  life,  for  yeares, 
or  halfe  a  yeare,  or  gardian  in  chivalry,  by  him  that  hath  the 
immediate  estate  of  inheritance,  for  wast  or  destruction  in 
houses,  gardens,  woods,  trees,  or  in  lands,  meadows,  &c., 
or  in  exile  of  men  to  the  disherison  of  him  in  the  reversion 
or  remainder.  There  be  two  kinds  of  waste,  viz.,  voluntary 
or  actuall,  and  permissive.  Wast  may  be  done  in  houses,  by 
pulling  or  prostrating  them  down,  or  by  suffering  the  same 
to  be  uncovered,  whereby  the  spars  or  rafters,  plaunchers, 
or  other  timber  of  the  house  are  rotten.  But  if  the  house  be 
uncovered  when  the  tenant  commeth  in,  it  is  no  wast  in 
the  tenant  to  suffer  the  same  to  fall  downe.  But  though  the 
house  be  ruinous  at  the  tenant's  coming  in,  yet  if  he  pull  it 


480   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

downe,  it  is  wast  unlesse  he  reedifie  it  againe.  Also  if  glasse 
windowes  (tho'  glased  by  the  tenant  himself e)  be  broken 
downe,  or  carried  away,  it  is  wast,  for  the  glasse  is  part  of 
his  house.  And  so  it  is  of  wainscot,  benches,  doores,  win- 
dowes, furnaces,  and  the  like,  annexed  or  fixed  to  the  house, 
either  by  him  in  the  reversion,  or  the  tenant. 

Though  there  be  no  timber  growing  upon  the  ground,  yet 
the  tenant  at  his  perill  must  keepe  the  houses  from  wasting. 
If  the  tenant  doe  or  suffer  waste  to  be  done  in  houses,  yet  if 
he  repaire  them  before  any  action  brought,  there  lieth  no 
action  of  wast  against  him,  but  he  cannot  plead,  quod  non 
fecit  vastum,  but  the  speciall  matter. 

A  wall  uncovered  when  the  tenant  commeth  in,  is  no  wast 
if  it  be  suffered  to  decay.  If  the  tenant  cut  downe  or  destroy 
any  fruit  trees  growing  in  the  garden  or  orchard,  it  is 
waste ;  but  if  such  trees  grow  upon  any  of  the  ground  which 
the  tenant  holdeth  out  of  the  garden  or  orchard,  it  is  no 
waste.  If  the  tenant  build  a  new  house,  it  is  waste,  and  if 
he  suffer  it  to  be  wasted,  it  is  a  new  waste.  If  the  house 
fall  downe  by  tempest,  or  be  burnt  by  lightning,  or 
prostrated  by  enemies,  or  the  like,  without  a  default  of 
the  tenant,  or  was  ruinous  at  his  comming  in,  and  fall 
downe,  the  tenant  may  build  the  same  againe  with  such  ma- 
terialls  as  remaines,  and  with  other  timber  which  he  may 
take  growing  on  the  ground  for  his  habitation,  but  he  must 
not  make  the  house  larger  than  it  was.  If  the  house  be 
discovered  by  tempest,  the  tenant  must  in  convenient  time 
repaire  it. 

53,  b.  If  the  tenant  suffer  the  houses  to  be  wasted,  and 
then  fell  down  timber  to  repaire  the  same,  this  is  a  double 
wast.  Digging  for  gravell,  lime,  clay,  brick,  earth,  stone, 
or  the  like,  or  for  mines  of  mettall,  coale,  or  the  like, 
hidden  in  the  earth,  and  were  not  open  when  the  tenant 
came  in,  is  wast ;  but  the  tenant  may  dig  for  gravell  or  clay 
for  the  reparation  of  the  house,  as  well  as  he  may  take  con- 
venient timber  trees.  It  is  wast  to  suffer  a  wall  of  the  sea  to 
be  in  decay,  so  as  by  the  flowing  and  reflowing  of  the  sea,  the 


ESCHEAT    AND    FORFEITURE.  481 

meadow  or  marsh  is  surrounded,  whereby  the  same  becomes 
unprofitable ;  but  if  it  be  surrounded  suddenly,  by  the  rage  or 
violence  of  the  sea,  occasioned  by  winde,  tempest,  or  the  like, 
without  any  default  in  the  tenant,  this  is  no  wast  punish- 
able. So  it  is,  if  the  tenant  repaire  not  the  bankes  or  walls 
against  rivers,  or  other  waters,  whereby  the  meadows  or 
marshes  be  surrounded,  and  become  rushy  and  unprofitable. 
If  the  tenant  convert  arable  land  into  wood  or  e  converse, 
or  meadow  into  arable,  it  is  waste,  for  it  changeth  not  onely 
the  course  of  his  husbandry,  but  the  proofe  of  his  evidence. 
The  tenant  may  take  sufficient  wood  to  repaire  the  walls, 
pales,  fences,  hedges,  and  ditches  as  he  found  them ;  but  he 
can  make  no  new :  and  he  may  take  also  sufficient  plowbote, 
firebote,  and  other  housebote.  The  tenant  cutteth  downe  trees 
for  reparations  and  selleth  them,  and  after  buyeth  them 
againe,  and  imploys  them  about  necessary  reparations,  yet  it 
is  wast  by  the  vendition :  he  cannot  sell  trees,  and  with  the 
money  cover  the  house :  burning  of  the  house  by  negligence 
or  mischance  is  waste.  .  .  . 

No  person  shall  have  an  action  of  wast,  unlesse  he  hath 
the  immediate  state  of  inheritance.  .  .  . 

N.  Y.  CODE  Civ.  PROC.,  §  1651.  An  action  for  waste  lies 
against  a  tenant  by  the  curtesy,  in  dower,  for  life,  or  for 
years,  or  the  assignee  of  such  a  tenant,  who,  during  his 
estate  or  term,  commits  waste  upon  the  real  property  held 
by  him,  without  a  special  and  lawful  written  license  so  to 
do.  ... 

§  1655.  If  the  plaintiff  recovers  in  an  action  for  waste, 
.  .  .  the  final  judgment  must  award  to  him  treble  dam- 
ages. Where  the  action  is  brought  by  the  person  next  en- 
titled to  the  reversion,  and  it  appears,  in  like  manner,  that 
the  injury  to  the  estate  in  reversion  is  equal  to  the  value  of 
the  tenant's  estate  or  unexpired  term,  or  that  it  was  done  ma- 
liciously, the  final  judgment  must  also  award  to  the  plaintiff 
the  forfeiture  of  the  defendant's  estate,  and  the  possession  of 
the  place  wasted. 


482   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

(d)   Forfeiture  for  Breach  of  Condition. 

Co.  LIT.,  251,  a,  b.  It  is  to  be  observed,  that  a  forfeiture 
may  be  made  by  the  alienation  of  a  particular  tenant,  two 
manner  of  wayes ;  either  in  pais,  or  by  matter  of  record. 

In  pais,  of  lands  and  tenements  which  lie  in  livery  .  .  . 
where  a  greater  estate  passeth  by  livery,  than  the  particular 
tenant  may  lawfully  make,  whereby  the  reversion  or  re- 
mainder is  devested,  as  here  in  the  example  that  Littleton 
putteth  when  tenant  for  life  alieneth  in  fee,  which  must  bee 
understood  of  a  feoff ment,  fine  or  recoverie  by  consent. 
If  tenant  for  life,  and  hee  in  the  remainder  for  life  in 
Littleton's  case,  hath  joyned  in  a  feoffment  in  fee,  this  had 
beene  a  forfeiture  of  both  their  estates,  because  hee  in  the 
remainder  is  particeps  injuriae.  And  so  it  is  if  hee  in  the 
remainder  for  life  had  entred,  and  disseised  tenant  for  life, 
and  made  a  feoffment  in  fee,  this  had  beene  a  forfeiture  of 
the  right  of  his  remainder. 

•  A  particular  estate  of  anything  that  lies  in  grant,  cannot 
be  forfeited  by  any  grant  in  fee  by  deed.  As  if  tenant  for 
life  or  yeares  of  an  advowson,  rent,  common,  or  of  a  rever- 
sion or  remainder  of  land,  by  deed  grant  the  same  in  fee, 
this  is  no  forfeiture  of  their  estates,  for  that  nothing  passes 
thereby,  but  that  which  lawfully  may  passe ;  and  of  that 
opinion  is  Littleton  in  our  bookes. 

2  BL.  COM.,  152.  Estates  upon  condition  implied  in  law1 
are  where  a  grant  of  an  estate  has  a  condition  annexed  to  it 
inseparably,  from  its  essence  and  constitution,  although  no 
condition  be  expressed  in  words.  As  if  a  grant  be  made  to 
a  man  of  an  office,  generally,  without  adding  other  words ; 
the  law  tacitly  annexes  hereto  a  secret  condition,  that  the 
grantee  shall  duly  execute  his  office,  on  breach  of  which 
condition  it  is  lawful  for  the  grantor,  or  his  heirs,  to  oust 
him,  and  grant  it  to  another  person.  For  an  office,  either 
public  or  private,  may  be  forfeited  by  mis-user  or  non-user, 

1  For  forfeiture  for  breach  of  express  conditions,  see  pages  300-315, 
supra. — ED. 


ESCHEAT    AND    FORFEITURE.  483 

both  of  which  are  breaches  of  this  implied  condition,  i.  By 
mis-user,  or  abuse;  as  if  a  judge  takes  a  bribe,  or  a  park- 
keeper  kills  deer  without  authority.  2.  By  non-user,  or 
neglect ;  which  in  public  offices,  that  concern  the  administra- 
tion of  justice,  or  the  commonwealth,  is  of  itself  a  direct  and 
immediate  cause  of  forfeiture;  but  non-user  of  a  private 
office  is  no  cause  of  forfeiture,  unless  some  special  damage 
is  proved  to  be  occasioned  thereby.  For  in  the  one  case  de- 
lay must  necessarily  be  occasioned  in  the  affairs  of  the  pub- 
lic, which  require  a  constant  attention :  but,  private  offices 
not  requiring  so  regular  and  unremitted  a  service,  the  tem- 
porary neglect  of  them  is  not  necessarily  productive  of  mis- 
chief :  upon  which  account  some  special  loss  must  be  proved, 
in  order  to  vacate  these.  Franchises,  also,  being  regal  priv- 
ileges in  the  hands  of  a  subject,  are  held  to  be  granted  on 
the  same  condition  of  making  a  proper  use  of  them ;  and 
therefore  they  may  be  lost  and  forfeited,  like  offices,  either 
by  abuse  or  by  neglect. 

Upon  the  same  principle  proceed  all  the  forfeitures  which 
are  given  by  law  of  life-estates  and  others,  for  any  acts 
done  by  the  tenant  himself,  that  are  incompatible  with  the 
estate  which  he  holds.  As  if  tenants  for  life  or  years  enfeoff 
a  stranger  in  fee-simple :  this  is,  by  the  common  law,  a  for- 
feiture of  their  several  estates ;  being  a  breach  of  the  condi- 
tion which  the  law  annexes  thereto,  viz.,  that  they  shall  not 
attempt  to  create  a  greater  estate  than  they  themselves  are 
entitled  to.1  So  if  any  tenants  for  years,  for  life,  or  in  fee, 
commit  a  felony ;  the  king  or  other  lord  of  the  fee  is  entitled 
to  have  their  tenements,  because  their  estate  is  determined 
by  the  breach  of  the  condition,  "that  they  shall  not  commit 
felony,"  which  the  law  tacitly  annexes  to  every  feodal  dona- 
tion. 

4  KENT.  COM.,  82-84.  Estates  for  life  were,  by  the  com- 
mon law,  liable  to  forfeiture,  not  only  for  waste,  but  by 
alienation  in  fee.  Such  an  alienation,  according  to  the  law 

'See  pages  255,  263,  supra. — ED. 


484   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

of  feuds,  amounted  to  a  renunciation  of  the  feudal  relation, 
and  worked  a  forfeiture  of  the  vassal's  estate  to  the  person 
entitled  to  the  inheritance  in  reversion  or  remainder. 
Alienation  by  feoffme'nt,  with  livery  of  seisin,  or  by  matter 
of  record,  as  by  fine 'or  recovery,  of  a  greater  estate  than  the 
tenant  for  life  was  entitled  to,  by  devesting  the  seisin,  and 
turning  the  estate  of  the  rightful  owner  into  a  right  of  en- 
try, operated  as  a  forfeiture  of  the  life  estate,  unless  the 
person  in  remainder  or  reversion  was  a  party  to  the  assur- 
ance. But  an  alienation  for  the  life  of  the  tenant  himself 
did  not  work  any  wrong;  and,  therefore,  says  Lord  Coke,1 
it  was  not  within  the  statute  of  Gloucester.  So,  a  mere 
grant  or  release  by  the  tenant  for  life,  passed,  at  common 
law,  only  what  he  might  lawfully  grant.  In  Massachusetts, 
Connecticut,  New  York  and  Pennsylvania,  this  feudal  no- 
tion of  forfeiture  is  expressly  renounced,  and  the  doctrine 
placed  upon  just  and  reasonable  grounds.  Any  conveyance 
by  a  tenant  for  life,  or  years,  of  a  greater  estate  than  he  pos- 
sessed, or  could  lawfully  convey,  passes  only  the  title  and 
estate  which  the  tenant  could  lawfully  grant.2  It  is,  there- 
fore, an  innocent  conveyance,  whatever  the  form  of  the  con- 
veyance may  be,  and  produces  no  forfeiture  of  the  particular 
estate.  It  does  not,  like  a  feoffment  with  livery  at  common 
law,  ransack  the  whole  estate  and  extinguish  every  right 
and  power  connected  with  it. 

The  same  conclusion  must  follow  from  the  general  pro- 
vision in  the  statute  of  Virginia,  of  December,  1783,  and 
from  the  forms  of  conveyance  in  use  in  other  States.  A 
conveyance  in  fee  by  a  tenant  for  life,  by  bargain  and  sale, 
or  by  lease  and  release,  does  not  work  a  discontinuance. 
Conveyances  under  the  Statute  of  Uses  are  innocent  con- 
veyances, since  they  operate  only  to  the  extent  of  the  grant- 
or's right  and  occasion  no  forfeiture.  .  .  . 

LEWIN,  TRUSTS,  821.    At  law  a  tenant  for  life  might,  until 

1  2  Inst.  309. 

1  New  York  Revised  Statutes,  Vol.  I.,  739,  sees.  143,  145. 


ESCHEAT    AND    FORFEITURE.  485 

a  modern  statute,1  by  certain  tortious  acts,  as  by  a  feoffment 
of  the  fee-simple,  have  forfeited  his  estate  to  the  remainder- 
man ;  but  had  an  equitable  tenant  for  life  affected  to  dispose 
of  the  equitable  fee,  no  forfeiture  would  have  accrued,  for 
nothing  passed  beyond  the  grantor's  actual  interest.  By  the 
act  above  referred  to  all  conveyances  are  now  innocent,  that 
is,  they  pass  nothing  but  what  the  grantor  can  lawfully  part 
with. 

N.  Y.  REAL  PROP.  LAW,  §  212.  A  conveyance  made  by  a 
tenant  for  life  or  years,  of  a  greater  estate  than  he  possesses, 
or  can  lawfully  convey,  does  not  work  a  forfeiture  of  his 
estate,  but  passes  to  the  grantee  all  the  title,  estate  or  inter- 
est which  such  tenant  can  lawfully  convey. 
J8&  9  Viet.,  c.  106,  s.  4. 


CHAPTER  IV. 

MARRIAGE. 

Co.  LIT.,  351,  a.  Here  it  is  good  to  be  scene  what  things 
are  given  to  the  husband  by  marriage.  First,  it  appeareth 
here  by  Littleton  that  if  a  man  taketh  to  wife  a  woman 
seised  in  fee,  he  gaineth  by  the  intermarriage  an  estate  of 
freehold  in  her  right,  which  estate  is  sufficient  to  worke  a 
remitter,  and  yet  the  estate  which  the  husband  gaineth  de- 
pendeth  upon  uncertaintie,  and  consisteth  in  privitie;  for  if 
the  wife  be  attainted  of  felony,  the  lord  by  escheat  shall  en- 
ter and  put  out  the  husband :  otherwise  it  is  if  the  felonie 
be  committed  after  issue  had.  Also,  if  the  husband  be  at- 
tainted of  felonie,  the  king  gaineth  no  freehold,  but  a  per- 
nancie  of  the  profits  during  the  coverture,  and  the  freehold 
remaineth  in  the  wife.  Secondly,  if  she  were  possessed  of  a 
terme  for  yeares,  yet  he  is  possessed  in  her  right ;  but  he 
hath  power  to  dispose  thereof  by  grant  or  demise;  and  if 
he  be  outlawed  or  attainted,  they  are  gifts  in  law. 

Upon  an  execution  against  the  husband  for  his  debt,  the 
sheriffe  may  sell  the  terme  during  her  life,  but  the  husband 
-can  make  no  disposition  thereof  by  his  last  will.  Also,  if  he 
:make  no  disposition  or  forfeiture  of  it  in  his  life,  yet  it  is  a 
gift  in  law  Unto  him  if  he  doe  survive  his  wife;  but  if  he 
make  no  disposition,  and  die  before  his  wife,  she  shall  have 
it  againe.  And  the  same  law  is  of  estates  by  statute  mer- 
chant, .statute  staple,  elegit,  wardships,  and  other  chattels 
realls  in  possession.  But  if  the  husband  charge  the  chattell 
reall  of  his  wife,  it  shall  not  binde  the  wife  if  shee  survive 
"him. 

ID.,  273,  b.  If  a  feme  covert  be  tenant  for  life,  a  release  to 
the  husband  and  his  heires  is  good,  for  there  is  both  privity 


MARRIAGE.  487 

and  an  estate  in  the  husband,  whereupon  the  release  may 
sufficiently  enure  by  way  of  enlargement ;  for  by  the  enter- 
marriage  he  gaineth  a  freehold  in  his  wife's  right. 

LIT.,  §  592.  Discontinuance  is  an  ancient  word  in  the 
law,  and  hath  divers  significations,  &c.  But  as  to  one  intent 
it  hath  this  signification,  vis.,  where  a  man  hath  aliened  to 
another  certaine  lands  or  tenements  and  dieth,  and  another 
hath  right  to  have  the  same  lands  or  tenements,  but  hee  may 
not  enter  into  them  because  of  such  an  alienation,  &c. 

§  594.  Also,  if  a  man  be  seised  of  land  as  in  right  of  his 
wife,  &c.,  and  thereof  infeoffe  another,  &c.,  and  dieth,  the 
wife  may  not  enter,  but  is  put  to  her  action,  the  which  is 
called,  cui  in  vita,  &c. 

Co.  LIT.,  326,  a.  "En  droit  sa  feme,  &c."  That  is  to  say, 
in  fee-simple,  fee-taile,  or  for  life.  Here  Littleton  putteth 
another  case  where  a  man  is  seised  in  auter  droit,  and  may 
make  a  discontinuance,  as  the  husband  seised  in  the  right  of 
his  wife,  and  therefore  the  common  law  gave  her  a  cui  in 
vita,  and  her  heire  a  sur  cui  in  vita,  because  they  could  not 
enter.  But  this  is  altered  since  our  author  wrote,  by  the 
statute  of  32  H.  8,  by  the  purview  of  which  statute  the  wife 
and  her  heires  after  the  decease  of  her  husband  may  enter 
into  the  lands  or  tenements  of  the  wife,  notwithstanding  the 
alienation  of  her  husband. 

i  WMS.  SAUNDERS,  253.  And  the  said  Margaret,  being 
so  seised  of  the  reversion  aforesaid  .  .  .  the  said 
Margaret  afterwards,  at  Southwald  aforesaid,  took  to  her 
husband  Christopher  Took  gent,  by  virtue  whereof  the  said 
Christopher  and  Margaret  zvere  seised  of  the  said  reversion 
in  their  demesne  as  of  fee  in  right  of  her  the  said  Margaret. 

This  is  the  correct  way  of  pleading  the  seisin  of  husband 
and  wife  where  the  estate  belongs  to  the  wife  in  fee.  They 
are  both  seised  in  right  of  the  wife;  and  therefore  if  the 
husband  pleads  that  he  alone  is  seised  in  his  demesne  as  of 


488   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

freehold  or  as  of  fee,  in  right  of  his  wife,  it  will  be  bad  upon 
a  special  demurrer.  Thus,  where  in  covenant  the  declara- 
tion stated  that  W.  S.  was  seised  in  fee,  and  being  so  seised, 
granted  the  lease  on  which  the  action  was  brought,  and 
upon  his  death  the  reversion  descended  upon  ].,  the  plaint- 
iff's wife  as  heirs  at  law,  whereupon  the  plaintiff  became 
and  was,  seised  of  the  said  reversion  in  his  demesne  as  of 
freehold  in  right  of  the  said  J.  his  wife.  The  court,  upon  a 
special  demurrer  shewing  for  cause  that  it  ought  to  have 
been  alleged,  "that  the  plaintiff  and  his  wife  were  seised  in 
their  demesne  as  of  fee  in  right  of  the  wife,"  were  of  opin- 
ion, that  the  way  of  pleading  pointed  out  by  the  demurrer, 
was  the  only  proper  and  formal  one.  Doug.  329,  Polyblank 
v.  Hawkins.  So  in  2  loitw.  1422,  1425,  Catlin  v.  Milner, 
where  it  is  stated  that  the  husband  alone  was  seised  in  his 
demesne  as  of  fee  in  right  of  his  wife,  it  was  held  not  to  be 
good  pleading ;  for  they  are  both  seised  in  right  of  the  wife ; 
and  so  are  all  the  precedents. — Williams'  note. 

WILLIAMS,  REAL  PROP.  (i7th  ed.),  352-355.  At  com- 
mon law,  by  the  act  of  marriage,  the  husband  and  wife  be- 
came in  law  one  person,  and  so  continued  during  the  cover- 
ture or  marriage.  The  wife  was,  as  it  were,  merged  in  her 
husband.  Immediately  upon  marriage,  therefore,  the  hus- 
band became  entitled  to  the  whole  of  the  rents  and  profits 
which  might  arise  from  his  wife's  lands,  and  acquired  a 
freehold  estate  therein,  during  the  continuance  of  the  cover- 
ture ;  and,  in  like  manner,  all  the  goods  and  personal  chattels 
of  the  wife,  the  property  in  which  passed  by  mere  delivery 
of  possession,  at  once  belonged  solely  to  her  husband.  For 
by  the  ancient  common  law,  it  was  impossible  that  the  wife 
should  have  any  power  of  disposition  over  property  for  her 
separate  benefit,  independently  of  her  husband.  The  hus- 
band also  acquired  by  marriage  a  seisin  of  all  his  wife's 
freeholds,  jointly  with  her.  If,  however,  the  husband  had 
issue  by  his  wife  born  alive,  that  might  by  possibility  inherit 
the  estate  as  her  heir,  he  became  entitled  to  an  estate,  after 


MARRIAGE.  489 

the  wife's  death,  for  the  residue  of  his  own  life  in  such  lands 
and  tenements  of  his  wife  as  she  was  solely  seised  of  in  fee 
simple  or  fee  tail  in  possession.  The  husband,  while  in  the 
enjoyment  of  this  estate,  was  called  a  tenant  by  the  curtesy 
of  England,  or  more  shortly,  tenant  by  the  curtesy.1  .  .  . 

The  husband  could  dispose  of  the  estate  which  he  took 
during  coverture  or  by  the  curtesy  in  lands  belonging  to 
his  wife  at  common  law,  without  her  concurrence;  and  it 
was  subject  to  his  debts  in  his  lifetime  either  upon  execution 
of  a  judgment  against  him,  or  on  his  bankruptcy.  But  he 
could  make  no  lawful  disposition  of  her  freehold  estates  to 
endure  beyond  his  own  interest.  So  that,  if  his  wife  sur- 
vived him,  she  resumed  her  right  to  her  freehold  estates, 
which  could  not  be  defeated  by  his  debts  or  alienations.  And 
if  he  survived  her,  her  estates  in  fee  simple  or  tail  descended 
to  her  heir,  if  she  were  the  purchaser,  or  to  the  heir  of  the 
purchaser,  if  she  had  become  entitled  by  descent,  subject 
only  to  the  husband's  estate  by  the  curtesy,  if  he  had  be- 
come entitled  thereto.  For  the  incapacity,  under  which  a 
married  woman  labored  at  common  law,  not  only  hindered 
her  from  making  any  separate  disposition  of  her  lands  in 
her  lifetime,  but  also  prevented  her  from  devising  them  by 
her  will.  .  .  . 

ID.,  359.  In  modern  times,  however,  if  property  of  any 
kind  were  vested  in  trustees,  in  trust  to  apply  the  income 
for  the  separate  use  of  a  woman  during  any  coverture,  pres- 
ent or  future,  the  trust  for  the  separate  use  of  the  wife 
might  be  enforced  in  equity.  That  is,  the  Courts  of  Equity 
obliged  the  trustees  to  hold  for  the  sole  benefit  of  the  wife, 
and  prevented  the  husband  from  interfering  with  her  in  the 
disposal  of  such  income ;  she  consequently  enjoyed  the  same 
absolute  power  of  disposition  over  it  as  if  she  were  sole  or 
unmarried.  .  .  . 

ID.,  363-367.  The  capacity  of  wives  with  regard  to  prop- 
erty was  completely  altered  by  the  Married  Women's  Prop- 

1  The  marital  estates  of  Curtesy  and  Dower  have  been  considered 
elsewhere.  See  pp  263-278,  supra. 


49O   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

erty  Act,  1882.  ...  By  this  Act,  a  married  woman  is 
capable  of  acquiring,  holding  and  disposing,  by  will  or 
otherwise,  of  any  real  or  personal  property,  in  the  same 
manner  as  if  she  were  a  feme  sole,  without  the  intervention 
of  any  trustee.  .  .  . 

A  wife  may  now  dispose  during  coverture  of  her  statu- 
tory separate  property,  whether  real  or  personal,  by  the 
same  means  by  which  a  single  woman  may  transfer  prop- 
erty of  the  like  nature.  She  may  therefore  convey  any  legal 
estate  of  freehold,  which  is  her  separate  property,  by  deed 
of  grant,  without  the  necessity  of  acknowledgment  or  of  her 
husband's  concurrence.  .  .  . 

.  .  .  A  man's  capacity  for  disposing  of  his  own  estates 
in  land  remains  unchanged  by  the  act  of  marriage ;  and  dur- 
ing a  husband's  life,  the  law  does  not  give  to  the  wife  any 
control  over  his  powers  of  disposition  or  any  interests  in  the 
rents  and  profits  of  his  land.  After  her  husband's  death, 
however,  a  widow  becomes  in  some  cases  entitled  to  a  life 
interest  in  part  of  her  late  husband's  lands.  This  interest  is 
termed  the  dower  of  the  wife.  .  .  , 

N.  Y.  L.,  1860,  c.  90,  sec.  I.  The  property,  both  real  and 
personal,  which  any  married  woman  now  owns,  as  her  sole 
and  separate  property,  which  comes  to  her  by  descent,  de- 
vise, bequest,  gift  or  grant ;  that  which  she  acquires  by  her 
trade,  business,  labor  or  services,  carried  on  or  performed 
on  her  sole  or  separate  account ;  that  which  a  woman  mar- 
ried in  this  State  owns  at  the  time  of  her  marriage,  and  the 
rents,  issues  and  proceeds  of  all  such  property,  shall,  not- 
withstanding her  marriage,  be  and  remain  her  sole  and  sep- 
arate property,  and  may  be  used,  collected  and  invested  by 
her  in  her  own  name,  and  shall  not  be  subject  to  the  inter- 
ference or  control  of  her  husband,  or  liable  for  his  debts,  ex- 
cept such  debts  as  may  have  been  contracted  for  the  support 
of  herself  or  her  children,  by  her  as  his  agent. 

WILLIAMS,  REAL  PROP,  (i/th  ed.),  374-377.  .  .  . 
The  legislation  in  New  York,  to  which  reference  has  been 


MARRIAGE.  491 

made,  places  the  married  woman,  so  far  as  her  real  property 
is  concerned,  and  the  same  is  true  as  to  her  personalty,  sub- 
stantially in  the  situation  of  a  feme  sole.  The  common-law 
estate  during  coverture  no  longer  exists.  She  controls  and 
conveys  her  realty  as  she  sees  fit,  and  the  husband  is  not  re- 
quired to  join  in  her  transactions  in  order  to  give  them 
validity. 

From  1848  to  the  present  the  work  of  legislative  change 
in  regard  to  the  property  rights  of  married  women,  both 
real  and  personal,  has  been  steadily  going  on  in  the  different 
States  of  the  Union.  In  some  the  steps  have  been  taken 
boldly,  and  the  change  has  probably  been  as  sweeping  as 
that  in  the  State  of  New  York ;  in  others,  timidity  has  char- 
acterized the  movement,  and  many  of  the  common-law  dis- 
abilities still  remain.  The  general  tendency  everywhere, 
however,  has  been  to  enlarge  greatly  the  wife's  freedom  of 
action  in  regard  to  her  separate  property.  .  .  . 

The  wife's  separate  estate  in  equity  has  been  quite 
generally  recognized  in  this  country,  but  more  espe- 
cially in  the  Southern  States.  See  Steel  v.  Steel,  I  Ired.  Eq. 
(N.  C.)  452.  ...  It  has  received  full  recognition  in 
the  State  of  New  York.  See  Jaques  v.  The  Methodist 
Episcopal  Church,  17  Johns.  548.  .  .  .  The  effect  of 
the  acts  in  regard  to  the  property  rights  of  married  women 
has  been  to  change  the  wife's  equitable  right  to  hold  a  sep- 
arate estate  into  a  legal  estate.  See  Wood  v.  Wood,  83 
N.  Y.  575.  But  the  jurisdiction  of  equity  can  still  undoubt- 
edly be  invoked  whenever  it  becomes  necessary  to  apply  to 
that  tribunal  for  the  protection  of  the  wife's  separate  prop- 
erty interests. — Hut  chins'  note. 


CHAPTER  V. 

OCCUPANCY. 

2  BL.  COM.,  258-260.  Occupancy  is  the  taking  possession 
of  those  things  which  before  belonged  to  nobody.  This,  as 
we  have  seen,  is  the  true  ground  and  foundation  of  all  prop- 
erty, or  of  holding  those  things  in  severalty,  which  by  the 
law  of  nature,  unqualified  by  that  of  society,  were  common 
to  all  mankind.  But  when  once  it  was  agreed  that  every 
thing  capable  of  ownership  should  have  an  owner,  natural 
reason  suggested  that  he  who  could  first  declare  his  inten- 
tion of  appropriating  anything  to  his  own  use,  and,  in  con- 
sequence of  such  intention,  actually  took  it  into  possession, 
should  thereby  gain  the  absolute  property  of  it ;  according  to 
that  rule  of  the  law  of  nations,  recognized  by  the  laws  of 
Rome,  quod  nullius  est,  id  ratione  naturali  occupanti  con- 
ceditur. 

This  right  of  occupancy,  so  far  as  it  concerns  real  prop- 
erty (for  of  personal  chattels  I  am  not  in  this  place  to 
speak),  hath  been  confined  by  the  laws  of  England  within 
a  very  narrow  compass :  and  was  extended  only  to  a  single 
instance :  namely,  where  a  man  was  tenant  pur  auter  vie,  or 
had  an  estate  granted  to  himself  only  (without  mentioning 
his  heirs)  for  the  life  of  another  man,  and  died  during  the 
life  of  cestuy  que  vie,  or  him  by  whose  life  it  was  holden ; 
in  this  case  he  that  could  first  enter  on  the  land  might  law- 
fully retain  the  possession,  so  long  as  cestuy  que  vie  lived, 
by  right  of  occupancy. 

This  seems  to  have  been  recurring  to  first  principles,  and 
calling  in  the  law  of  nature  to  ascertain  the  property  of  the 
land,  when  left  without  a  legal  owner.  For  it  did  not  revert 
to  the  grantor,  though  it  formerly  was  supposed  so  to  do; 


OCCUPANCY.  493 

for  he  had  parted  with  all  his  interests,  so  long  as  cestuy  que 
vie  lived :  it  did  not  escheat  to  the  lord  of  the  fee,  for  all 
escheats  must  be  of  the  absolute  entire  fee,  and  not  of  any 
particular  estate  carved  out  of  it ;  much  less  of  so  minute  a 
remnant  as  this :  it  did  not  belong  to  the  grantee,  for  he  was 
dead :  it  did  not  descend  to  his  heirs,  for  there  were  no 
words  of  inheritance  in  the  grant:  nor  could  it  vest  in  his 
executors,  for  no  executors  could  succeed  to  a  freehold. 
Belonging  therefore  to  nobody,  like  the  haereditas  jacens  of 
the  Romans,  the  law  left  it  open  to  be  seised  and  appro- 
priated by  the  first  person  that  could  enter  upon  it,  during 
the  life  of  cestuy  que  vie,  under  the  name  of  an  occupant. 
But  there  was  no  right  of  occupancy  allowed,  where  the 
king  had  the  reversion  of  the  lands :  for  the  reversioner  hath 
an  equal  right  with  any  other  man  to  enter  upon  the  vacant 
possession,  and  where  the  king's  title  and  a  subject's  con- 
cur, the  king's  shall  be  always  preferred :  against  the  king, 
therefore,  there  could  be  no  prior  occupant,  because  nullum 
tempus  occurrit  regi.  And,  even  in  the  case  of  a  subject, 
had  the  estate  pur  auter  vie  been  granted  to  a  man  and  his 
heirs  during  the  life  of  cestuy  que  vie,  there  the  heir  might, 
and  still  may,  enter  and  hold  possession,  and  is  called  in  law 
a  special  occupant:  as  having  a  special  exclusive  right  by 
the  terms  of  the  original  grant,  to  enter  upon  and  occupy 
this  hcereditas  jacens,  during  the  residue  of  the  estate 
granted :  though  some  have  thought  him  so  called  with  no 
very  great  propriety,  and  that  such  estate  is  rather  a  de- 
scendible freehold.  But  the  title  of  common  occupancy  is 
now  reduced  almost  to  nothing  by  two  statutes :  the  one  29 
Car.  II.,  c.  3,  which  enacts  (according  to  the  ancient  rule  of 
law)  that  where  there  is  no  special  occupant,  in  whom  the 
estate  may  vest,  the  tenant  pur  auter  vie  may  devise  it  by 
will,  or  it  shall  go  to  the  executors  or  administrators,  and 
be  assets  in  their  hands  for  payment  of  debts  :  the  other,  that 
of  14  Geo.  II.,  c.  10,  which  enacts  that  the  surplus  of  such 
estate  pur  auter  vie,  after  payment  of  debts,  shall  go  in  a 
course  of  distribution  like  a  chattel  interest. 


494   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

By  these  two  statutes  the  title  of  common  occupancy  is 
utterly  extinct  and  abolished;  though  that  of  special  oc- 
cupancy by  the  heir-at-law  continues  to  this  day ;  such  heir 
being  held  to  succeed  to  the  ancestor's  estate,  not  by  descent, 
for  then  he  must  take  an  estate  of  inheritance,  but  as  an 
occupant  specially  marked  out  and  appointed  by  the  original 
grant.  But,  as  before  the  statutes,  there  could  no  com- 
mon occupancy  be  had  of  incorporeal  hereditaments,  as 
of  rents,  tithes,  advowsons,  commons,  or  the  like  (because, 
with  respect  to  them,  there  could  be  no  actual  entry  made, 
or  corporal  seisin  had ;  and  therefore  by  the  death  of  the 
grantee  pur  outer  vie  a  grant  of  such  hereditaments  was  en- 
tirely determined),  so  now,  I  apprehend,  notwithstanding 
these  statutes,  such  grant  would  be  determined  likewise ; 
and  the  hereditaments  would  not  be  devisable,  nor  vest  in 
the  executors,  nor  go  in  a  course  of  distribution.  For  these 
statutes  must  not  be  construed  so  as  to  create  any  new  es- 
tate, or  keep  that  alive  which  by  the  common  law  was  deter- 
mined, and  thereby  to  defer  the  grantor's  reversion ;  but 
merely  to  dispose  of  an  interest  in  being,  to  which  by  law 
there  was  no  owner,  and  which  therefore  was  left  open  to 
the  first  occupant.  When  there  is  a  residue  left,  the  statutes 
give  it  to  the  executors  and  administrators,  instead  of  the 
first  occupant ;  but  they  will  not  create  a  residue,  on  pur- 
pose to  give  it  to  either.  They  only  meant  to  provide  an  ap- 
pointed instead  of  a  casual,  a  certain  instead  of  an  uncer- 
tain, owner  of  lands  which  before  were  nobody's ;  and  there- 
by to  supply  this  casus  omissus,  and  render  the  disposition 
of  law  in  all  respects  entirely  uniform ;  this  being  the  only 
instance  wherein  a  title  to  a  real  estate  could  ever  be  ac- 
quired by  occupancy. 

N.  Y.  REAL  PROP.  LAW,  §  24.  An  estate  for  the  life  of  a 
third  person,  whether  limited  to  heirs  or  otherwise,  shall  be 
deemed  a  freehold  only  during  the  life  of  the  grantee  or 
devisee ;  after  his  death  it  shall  be  deemed  a  chattel  real. 


CHAPTER  VI. 

CUSTOM  AND  PRESCRIPTION. 

BRACTON,  220.  .  .  .  Servitudes  can  be  made  to  apper- 
tain to  any  land  by  voluntary  grant  or  reservation  on  the 
part  of  the  owners.  They  may  also  appertain  to  a  tenement 
without  a  grant  by  long  and  peaceable  user  uninterrupted 
by  any  hindrance  interposed,  and  permitted  to  continue  by 
parties  who  are  on  the  spot,  all  which  amounts  to  assent. 
Hence  it  follows  that  although  a  servitude  may  not  be  re- 
served or  granted  in  express  words,  by  the  owners  of  the 
soil,  nevertheless  if  there  has  been  any  user  extending  over 
any  considerable  time,  exercised  in  peace,  without  any 
interruption,  and  not  by  violence  or  stealth,  or  by  virtue 
of  a  request,  which  is  the  same  thing  as  by  favor,  the  person 
enjoying  the  right  cannot  be  ousted  of  it,  at  all  events 
without  the  judgment  of  a  court;  but  if  the  servitude  be 
enjoyed  by  violence,  the  disseisor  will  never  acquire  the 
right  by  reason  of  the  length  of  time  for  which  it  has  been 
enjoyed,  although  it  may  be  that  through  the  negligence 
of  the  person  ousted  the  right  may  be  acquired  by  long 
and  peaceful  and  uninterrupted  possession,  under  the  eyes 
of  the  parties ;  though  it  is  otherwise  in  the  absence  of  the 
parties;  and  a  seisin  so  obtained  can  be  interrupted  in 
many  different  ways.  And  if  the  seisin  be  clandestine — 
that  is  to  say,  in  the  absence  of  the  owners,  or  without  their 
knowledge,  and  if  they  would  have  been  likely  to  forbid  it  if 
they  had  known — it  ought  not  to  be  of  any  avail,  although 
the  bailiffs  of  the  land  may  have  assented  to  or  winked  at  it. 
Moreover,  if  it  was  due  to  a  mere  act  of  grace  and  favor 


49^   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

which  may  be  revoked  in  season  and  out  of  season,  no  right 
is  acquired  by  lapse  of  time;  no  more  than  in  the  case  last 
mentioned. 

LIT.,  §  170.  And  note,  that  no  custome  is  to  bee  allowed, 
but  such  custome,  as  hath  bin  used  by  title  of  prescription, 
that  is  to  say,  from  time  out  of  minde.  But  divers  opinions 
have  beene  of  time  out  of  mind,  &c.,  and  of  title  of  prescrip- 
tion, which  is  all  one  in  the  law.  For  some  have  said,  that 
time  out  of  mind  should  bee  said  from  time  of  limitation  in 
a  writ  of  right ;  that  is  to  say,  from  the  time  of  King  Rich- 
ard, the  first  after  the  Conquest,  as  is  given  by  the  statute 
of  Westminster  the  first,  for  that  a  writ  of  right  is  the  most 
high  writ  in  his  nature,  that  may  be.  ...  And  others 
have  said  that  well  and  truth  it  is,  that  seisin  and  continu- 
ance after  the  limitation,  &c.,  is  a  title  of  prescription,  as  is 
aforesaid,  and  by  the  cause  aforesaid.  But  they  have  sayd, 
that  there  is  also  another  title  of  prescription,  that  was  at 
the  common  law  before  any  estatute  of  limitation  of  writs, 
&c.,  and  that  it  was,  where  a  custome,  or  usage,  or  other 
thing,  hath  beene  used,  for  time  whereof  mind  of  man  run- 
neth not  to  the  contrary.  And  they  have  said,  that  this  is 
proved  by  the  pleading,  where  a  man  will  plead  a  title  of 
prescription  of  custome.  Hee  shall  say,  that  such  custome 
hath  beene  used  from  time  whereof  the  memory  of  men  run- 
neth not  to  the  contrary,  that  is  as  much  to  say,  when  such  a 
matter  is  pleaded,  that  no  man  then  alive  hath  heard  any 
proofe  of  the  contrary,  nor  hath  no  knowledge  to  the  con- 
trary ;  and  insomuch  that  such  title  of  prescription  was  at 
the  common  law,  and  not  put  out  by  an  estatute,  ergo,  it 
abideth  as  it  was  at  the  common  law ;  and  the  rather,  inso- 
much that  the  said  limitation  of  a  writ  of  right  is  of  so  long 
time  passed.  Ideo  quaere  de  hoc. 

2  BL.  COM.,  263-266.  And,  first,  the  distinction  between 
custom  and  prescription  is  this:  that  custom  is  properly  a 
local  usage,  and  not  annexed  to  a  person;  such  as  a  custom 


CUSTOM    AND    PRESCRIPTION.  497 

in  the  manor  of  Dale  that  lands  shall  descend  to  the  young- 
est son:  prescription  is  merely  a  personal  usage;  as,  that 
Sempronius  and  his  ancestors,  or  those  whose  estate  he 
hath,  have  used  time  out  of  mind  to  have  such  an  advantage 
or  privilege.  As  for  example;  if  there  be  a  usage  in  the 
parish  of  Dale,  that  all  the  inhabitants  of  that  parish  may 
dance  on  a  certain  close,  at  all  times,  for  their  recreation 
(which  is  held  to  be  a  lawful  usage)  ;  this  is  strictly  a  cus- 
tom, for  it  is  applied  to  the  place  in  general,  and  not  to  any 
particular  persons:  but  if  the  tenant,  who  is  seised  of  the 
manor  of  Dale  in  fee,  alleges  that  he  and  his  ancestors,  or 
all  those  whose  estate  he  hath  in  the  said  manor,  have  used 
time  out  of  mind  to  have  common  of  pasture  in  such  a  close, 
this  is  properly  called  a  prescription;  for  this  is  a  usage 
annexed  to  the  person  of  the  owner  of  this  estate.  All  pre- 
scription must  be  either  in  a  man  and  his  ancestors,  or  in  a 
man  and  those  whose  estate  he  hath :  which  last  is  called 
prescribing  in  a  que  estate.1  And  formerly  a  man  might,  by 
the  common  law,  have  prescribed  for  a  right  which  had  been 
enjoyed  by  his  ancestors  or  predecessors  at  any  distance  of 
time,  though  his  or  their  enjoyment  of  it  had  been  sus- 
pended for  an  indefinite  series  of  years.  But  by  the  statute 
of  limitations,  32  Hen.  VIII. ,  c.  2,  it  is  enacted,  that  no  per- 
son shall  make  any  prescription  by  the  seisin  or  possession 
of  his  ancestor  or  predecessor,  unless  such  seisin  or  posses- 
sion hath  been  within  threescore  years  next  before  such  pre- 
scription made. 

Secondly,  as  to  the  several  species  of  things  which  may, 
or  may  not,  be  prescribed  for :  we  may,  in  the  first  place, 
observe  that  nothing  but  incorporeal  hereditaments  can  be 
claimed  by  prescription ;  as  a  right  of  way,  a  common,  &c. ; 
but  that  no  prescription  can  give  a  title  to  lands,  and  other 
corporeal  substances,  of  which  more  certain  evidence  may 
be  had.  For  a  man  shall  not  be  said  to  prescribe  that  he 
and  his  ancestors  have  immemorially  used  to  hold  the  castle 
of  Arundel :  for  this  is  clearly  another  sort  of  title,  a  title  by 

1  Quern  statum,  "  which  estate,"  /.  e.,  "  whose  estate  "  he  hath. — ED. 


READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

corporal  seisin  and  inheritance,  which  is  more  permanent, 
and  therefore  more  capable  of  proof,  than  that  of  prescrip- 
tion. But,  as  to  a  right  of  way,  a  common,  or  the  like,  a 
man  may  be  allowed  to  prescribe ;  for  of  these  there  is  no 
corporal  seisin,  the  enjoyment  will  be  frequently  by  inter- 
vals, and  therefore  the  right  to  enjoy  them  can  depend  on 
nothing  else  but  immemorial  usage.  2.  A  prescription  must 
always  be  laid  in  him  that  is  tenant  of  the  fee.  A  tenant 
for  life,  for  years,  at  will,  or  a  copyholder,  cannot  prescribe, 
by  reason  of  the  imbecility  of  their  estates.  For,  as  pre- 
scription is  usage  beyond  time  of  memory,  it  is  absurd  that 
they  should  pretend  to  prescribe  for  anything  whose  estates 
commenced  within  the  remembrance  of  man.  And  there- 
fore the  copyholder  must  prescribe  under  cover  of  his  lord's 
estate,  and  the  tenant  for  life  under  cover  of  the  tenant  in 
fee-simple.  As  if  tenant  for  life  of  a  manor  would  pre- 
scribe for  a  right  of  common  as  appurtenant  to  the  same,  he 
must  prescribe  under  cover  of  the  tenant  in  fee-simple ;  and 
must  plead  that  John  Stiles  and  his  ancestors  had  imme- 
morially  used  to  have  this  right  of  common,  appurtenant  to 
the  said  manor,  and  that  John  Stiles  demised  the  said 
manor,  with  its  appurtenances,  to  him  the  said  tenant  for 
life.  3.  A  prescription  cannot  be  for  a  thing  which  cannot 
be  raised  by  grant.  For  the  law  allows  prescription  only  in 
supply  of  the  loss  of  a  grant,  and  therefore  every  prescrip- 
tion presupposes  a  grant  to  have  existed.  Thus  the  lord  of 
a  manor  cannot  prescribe  to  raise  a  tax  or  toll  upon  strang- 
ers; for,  as  such  claim  could  never  have  been  good  by  any 
grant,  it  shall  not  be  good  by  prescription.  4.  A  fourth  rule 
is,  that  what  is  to  arise  by  matter  of  record  cannot  be  pre- 
scribed for,  but  must  be  claimed  by  grant,  entered  on  rec- 
ord ;  such  as,  for  instance,  the  royal  franchises  of  deodands, 
felons'  goods,  and  the  like.  These,  not  being  forfeited  till 
the  matter  on  which  they  arise  is  found  by  the  inquisition  of 
a  jury,  and  so  made  a  matter  of  record,  the  forfeiture  itself 
cannot  be  claimed  by  an  inferior  title.  But  the  franchises  of 
treasure-trove,  waifs,  estrays,  and  the  like,  may  be  claimed 


CUSTOM    AND    PRESCRIPTION.  499 

by  prescription;  for  they  arise  from  private  contingencies, 
and  not  from  any  matter  of  record.  5.  Among  things  in- 
corporeal, which  may  be  claimed  by  prescription,  a  dis- 
tinction must  be  made  with  regard  to  the  manner  of  pre- 
scribing; that  is,  whether  a  man  shall  prescribe  in  a  que 
estate,  or  in  himself  and  his  ancestors.  For,  if  a  man  pre- 
scribes in  a  qnc  estate  (that  is,  in  himself  and  those  whose 
estate  he  holds),  nothing  is  claimable  by  this  prescription, 
but  such  things  as  are  incident,  appendant,  or  appurtenant 
to  lands;  for  it  would  be  absurd  to  claim  anything  as  the 
consequence,  or  appendix  of  an  estate,  with  which  the  thing 
claimed  has  no  connection ;  but,  if  he  prescribes  in  himself 
and  his  ancestors,  he  may  prescribe  for  anything  whatso- 
ever that  lies  in  grant ;  not  only  things  that  are  appurtenant, 
but  also  such  as  may  be  in  gross.  Therefore  a  man  may 
prescribe,  that  he,  and  those  whose  estate  he  hath  in  the 
manor  of  Dale,  have  used  to  hold  the  advowson  of  Dale,  as 
appendant  to  that  manor;  but,  if  the  advowson  be  a  distinct 
inheritance,  and  not  appendant,  then  he  can  only  prescribe 
in  his  ancestors.  So  also  a  man  may  prescribe  in  a  que 
estate  for  a  common  appurtenant  to  a  manor ;  but,  if  he 
would  prescribe  for  a  common  in  gross,  he  must  prescribe  in 
himself  and  his  ancestors.  6.  Lastly,  we  may  observe,  that 
estates  gained  by  prescription  are  not,  of  course,  descendible 
to  the  heirs  general,  like  other  purchased  estates,  but  are  an 
exception  to  the  rule.  For,  properly  speaking,  the  prescrip- 
tion is  rather  to  be  considered  as  an  evidence  of  a  former 
acquisition  than  as  an  acquisition  de  noro:  and  therefore,  if 
a  man  prescribes  for  a  right  of  way  in  himself  and  his  ances- 
tors, it  will  descend  only  to  the  blood  of  that  line  of  an- 
cestors in  whom  he  so  prescribes ;  the  prescription  in  this 
case  being  indeed  a  species  of  descent.  But,  if  he  prescribes 
for  it  in  a  que  estate,  it  will  follow  the  nature  of  that  estate 
in  which  the  prescription  is  laid,  and  be  inheritable  in  the 
same  manner,  whether  that  were  acquired  by  descent  or  pur- 
chase;  for  every  accessory  follow  eth  the  nature  of  its  prin- 
.cipal. 


5OO   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

DIGBY,  HIST.  REAL  PROP.,  Ch.  III.,  §  18  (i).  With  re- 
gard to  the  origin  of  servitudes,  or  the  modes  in  which  they 
may  be  acquired,  Bracton  correctly  lays  down  the  two 
modes  which  have  always  been  recognized,  grant  (domino- 
ruin  constitutio)  and  prescription  (usus).  Feoffment  with 
livery  was  confined  to  granting  freehold  estates  over  land. 
It  was  not  applicable  to  the  class  of  rights  in  land  under 
consideration.  Hence  the  other  principal  mode  of  creating 
rights  was  adopted,  namely,  writing  under  seal,  and  it  be- 
came a  principle  that  for  the  creation  of  a  servitude  (ease- 
ment or  profit)  a  grant  by  deed  was  necessary. 

The  other  mode  of  acquiring  servitudes  is,  according  to 
Bracton,  per  Ion  gum  usum  continuum  et  pacificum.  The 
user  must  have  been  as  of  right,  not  violent,  or  clandestine, 
or  permissive.  These  principles,  borrowed  from  the  Ro- 
mans, took  root  in  our  law.  Only,  as  time  went  on,  the  no- 
tion of  prescription  underwent  a  change.  Long  enjoyment 
of  a  right  was  not  considered,  as  was  the  case  in  the  Roman 
system,  and  as  Bracton's  language  here  implies,  as  itself  a 
positive  mode  of  acquisition,  but  only  as  evidence  that  at 
some  period  the  owner  of  the  soil  had  created  the  right  in 
question  by  a  lost  or  forgotten  deed. 

ID.,  Ch.  X.,  §  i.  Before  the  passing  of  the  Prescription 
Act1  this  mode  of  acquiring  rights  in  alieno  solo  was  re- 
garded exclusively  as  a  species  of  title  by  grant,  differing 
only  from  an  express  grant  in  the  evidence  by  which  it  was 
established.  If  it  be  proved  that  the  right  has  been  in  fact 
enjoyed  as  far  back  as  memory  can  trace  it,  and  no  origin 
of  the  right  be  shown,  the  presumption  is  that  it  has  been 
enjoyed  from  time  immemorial,  that  is,  from  some  period 
anterior  to  the  first  year  of  Richard  I.,  the  time  at  which 
legal  memory  commences,  and  that  it  was  created  before 
that  period  by  the  owner  of  the  soil.  And  even  if  the  right 
were  shown  to  have  been  created  within  the  time  of  legal 
memory,  juries  were  directed,  when  the  right  was  in  ques- 
tion, to  presume  that  as  a  fact  the  right  had  been  expressly 
granted  by  the  owner  of  the  soil,  and  that  the  grant  had 
'2  &  3  Will.  IV..  c  71. 


CUSTOM    AND    PRESCRIPTION.  50! 

been  lost.  This  mode  of  supporting  rights  was  felt  to  be 
most  unsatisfactory,  and  at  length  the  Prescription  Act  was 
passed,  by  which  a  perfect  title  to  easements  and  profits  is 
conferred  upon  persons  who  have  enjoyed  them  as  of  right 
continuously  for  certain  periods  of  time  specified  in  the  Act. 
Its  provisions  are  somewhat  complicated,  but  the  practical 
effect  is  that  the  enjoyment  of  an  easement,  as,  for  instance, 
of  a  way  or  of  the  access  of  light  and  air  through  a  window 
for  twenty  years,  and  the  enjoyment  of  a  profit  a  prendre, 
as,  for  instance,  of  pasturage  on  a  common,  for  thirty  years, 
works  the  acquisition  of  the  right.  The  enjoyment  must, 
except  in  the  case  of  light,  be  by  a  person  claiming  right 
thereto,  hence  it  may  be  defeated  by  showing  that  it  has 
been  enjoyed  avowedly  in  exercise  of  some  continuing  per- 
mission or  authority  of  the  owner  of  the  soil. 


B.    UNDER  MODERN  STATUTES. 
/.   Voluntary  Alienation. 

CHAPTER  I. 

UNDER  THE  STATUTE  OF  USES. 

DIGBY,  HIST.  REAL  PROP.,  Ch.  VII.,  $  2.  The  Statute 
of  Uses  at  once  produced  important  effects  upon  the  old 
modes  of  conveying  the  legal  estate  in  tands.  It  has  been 
already  seen  what  were  the  appropriate  modes  of  conveying 
freehold  estates  at  common  law.  If  th£  freehold  was  to 
pass  immediately  from  the  grantor  to  the  grantee,  feoffment 
with  livery  of  seisin  was  the  only  appropriate  mode.  Irt 
practice  the  same  result  was  accomplished  by  the  fictitious 
processes  of  fines  and  recoveries.  It  has  also  been  se«n 
under  what  circumstances  the  Chancellor  would  before  the 
Statute  have  held  that  the  party  taking  by  the  common  law 
conveyance  would  hold  to  the  use,  not  of  himself,  but  oi  the 
grantee  or  some  other  person.  Wherever,  with  certain  ex- 
ceptions to  be  hereafter  noticed,1  such  a  construction  would 
before  the  Statute  have  been  put  upon  the  conveyance  by  the 
Chancellor — wherever  a  use  would  have  been  raised  in 
favor  of  some  person  other  than  the  feoffee  or  grantee  at 
common  law,  by  reason  either  of  an  express  declaration  of 
the  use,  or  of  circumstances  from  which  the  intention  of 
raising  the  use  would  necessarily  have  been  inferred,  in  all 
such  cases  after  the  Statute  the  legal  state  passed  to  the  per- 
son in  whose  favor  the  use  was  declared  or  implied. 

*  *  *  *  *  *  * 

The  distinction  made  in  the  text-books  between  the  raia- 
1  Active  trusts,  trusts  of  leasehold  interests,  and  uses  upon  uses.     See 
page  165,  supra. 


UNDER    THE    STATUTE    OF    USES.  503 

ing  of  a  use  by  a  conveyance  operating  by  transmutation  of 
possession,  and  raising  a  use  without  transmutation  of  pos- 
session, has  already  been  noticed.1  In  the  former  case  a 
mode  of  conveyance  is  employed  sufficient  at  common  law  to 
take  the  estate  out  of  the  donor  and  to  vest  it  in  the  donee. 
To  this  conveyance  is  superadded,  either  by  express  words  or 
by  necessary  implication,  the  obligation  upon  the  donee 
to  hold  to  the  use  of  the  donor  or  of  some  third  person,  or  of 
the  donor  together  with  some  third  person  .... 

Uses  are  raised  without  transmutation  of  possession  when 
the  legal  owner  of  lands  binds  himself  to  hold  the  lands  for 
the  use  of  some  other  person.  It  has  already  been  seen  that 
the  usual  mode  of  effecting  this  before  the  Statute  was  by 
bargain  and  sale,  or  covenant  to  stand  seised.2  In  these  cases 
the  use,  which  before  the  Statute  was  raised  in  favor  of  the 
covenantee  or  bargainee,  is  now  executed  by  the  Statute,  and 
thus  these  two  assurances  take  their  places  as  modes  of  con- 
veying the  legal  interest  in  lands.  Thus  A.  covenants 
to  stand  seised  for  B.  his  eldest  son  and  his  heirs,  or  in 
consideration  of  £100  bargains  and  sells  his  lands  to 
C.  and  his  heirs.  B.  and  C.  by  force  of  the  Statute  take 
an  estate  in  fee  simple  in  precisely  the  same  way  as  if  that 
estate  had  been  conveyed  to  them  respectively  by  feoffment 
at  common  law. 

LEAKE,  LAND  LAW,  108.  Upon  principles  of  equity  any 
agreement,  supported  by  a  valuable  consideration,  to  the 
effect  that  an  estate  or  interest  in  land  should  be  conveyed, 
as  it  might  be  specifically  enforced  in  the  Court  of  Chancery, 
was  held  to  entitle  the  purchaser  to  the  use  or  beneficial 
ownership  according  to  the  terms  and  intent  of  the  agree- 
ment, without  any  legal  conveyance ;  and  accordingly  the 
vendor  was  held  to  be  or  stand  seised  to  the  use  of  the  pur- 
chaser. Such  transaction,  as  creating  a  use  executed  by 
the  statute,  became  technically  known  as  a  bargain  and 
sale.  .  .  . 

An  agreement  unsupported  by  a  valid  consideration,  or  a 

1  See  page  139,  supra. — En.         *See  page  139,  supra. — ED. 


504   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

mere  declaration  of  use  without  transfer  of  possession,  was 
altogether  void  of  effect  in  raising  a  use  within  the  statute 
by  reason  of  the  principle  that  equity  will  not  enforce  gratu- 
itous, or,  as  they  are  called,  voluntary  agreements.  And,  in 
general,  no  distinction  was  admitted  in  equity  in  this  respect 
by  reason  of  the  agreement  or  declaration  being  made  in  the 
form  of  a  covenant  or  by  deed  under  seal ;  although  in  law 
such  formality  supplied  the  force  of  a  consideration.  But 
the  value  or  amount  of  the  consideration  paid  was  imma- 
terial; the  existence  or  expression  of  it  was  sufficient  to  de- 
note that  the  transaction  was  intended  by  way  of  bargain 
and  not  as  a  mere  voluntary  agreement ;  and  if  not  a  vol- 
untary agreement,  it  was  effectual  to  raise  a  use  by  way  of 
bargain  and  sale. 

An  exception  to  the  general  rule  of  equity  not  to  enforce 
voluntary  agreements  was  made  in  the  case  of  a  covenant  or 
declaration  by  deed  executed  by  the  person  seised  to  stand 
seised  to  the  use  of  his  wife,  child,  or  some  blood  relation. 
The  motive  then  stood  in  place  of  a  consideration,  and  it 
was  said  to  be  made  upon  a  good  consideration,  as  distin- 
guished from  a  consideration  of  money  or  value,  which 
formed  the  characteristic  of  a  bargain  and  sale.  A  covenant 
to  stand  seised  to  uses  was  thus  a  recognized  mode  of  rais- 
ing uses  in  family  settlements. 

DIGBY,  HIST.  REAL  PROP.,  Ch.  VII.,  §  2.  One  of  the 
immediate  effects  of  the  Statute  was,  as  has  been  seen,  to 
give  legal  validity  and  effect  to  ''bargains  and  sales."  These 
transactions  required  no  particular  ceremony,  no  open  or 
notorious  act,  such  as  livery  of  seisin;  and  thus  one  of  the 
great  objects  of  the  Statute,  the  prevention  of  secret  convey- 
ances, would  have  been  eluded.  This  was  at  once  perceived 
by  the  legislature,  and  in  the  same  year  a  second  Act  was 
passed  intended  to  prevent  the  mischief  of  secret  bargains 
and  sales  by  providing  for  their  enrolment  in  one  of  the 
superior  courts  or  before  the  custos  rotulorum  of  the  county 
in  which  the  lands  were  situate. 


UNDER    THE    STATUTE    OF    USES.  505 

STAT.  27  HEN.  VIII.  (1535),  c.  16.  Statute  of  Enrol- 
ments.— Be  it  enacted  by  the  authority  of  this  present  parlia- 
ment, that  from  the  last  day  of  July,  which  shall  be  in  the 
year  of  our  Lord  God  1536,  no  manors,  lands,  tenements, 
or  other  hereditaments,  shall  pass,  alter,  or  change  from  one 
to  another,  whereby  any  estate  of  inheritance  or  freehold 
shall  be  made  or  take  effect  in  any  person  or  persons,  or  any 
use  thereof  to  be  made,  by  reason  only  of  any  bargain  and 
sale  thereof,  except  the  same  bargain  and  sale  be  made  by 
writing,  indented,  sealed,  and  enrolled  in  one  of  the  King's 
Courts  of  Record  at  Westminster,  or  else  within  the  same 
county  or  counties  where  the  same  manors,  lands,  or  tene- 
ments so  bargained  and  sold  lie  or  be,  before  the  Custos 
Rotulorum  and  two  Justices  of  the  Peace,  and  the  Clerk  of 
the  Peace  of  the  same  county  or  counties,  or  two  of  them 
at  the  least,  whereof  the  Clerk  of  the  Peace  to  be  one ;  and 
the  same  enrolment  to  be  had  and  made  within  six  months 
next  after  the  date  of  the  same  writings  indented.  .  .  . 
And  that  the  Clerk  of  the  Peace  for  the  time  being,  within 
every  such  county,  shall  sufficiently  enrol  and  engross  in 
parchment  the  same  deeds  or  writings  indented  as  is  afore- 
said, and  the  rolls  thereof  at  the  end  of  every  year  shall  de- 
liver unto  the  said  Custos  Rotulorum  of  the  same  county  for 
the  time  being,  there  to  remain  in  the  custody  of  the  said 
Custos  Rotulorum  for  the  time  being,  amongst  other  rec- 
ords of  every  of  the  same  counties  where  any  such  enrol- 
ment shall  be  so  made,  to  the  intent  that  every  party  that 
hath  to  do  therewith  may  resort  and  see  the  effect  and  tenor 
of  every  such  writing  so  enrolled. 

DIGBY,  HIST.  REAL  PROP.,  Ch.  VII.,  §  3.  An  examination 
of  the  language  of  the  Statute  [of  Enrolments]  shows  that 
its  provisions  only  extend  to  prevent  any  estate  of  inheritance 
or  freehold  being  created  without  the  observance  of  the  pre- 
scribed forms.  The  Statute  therefore  did  not  extend  to  the 
creation  of  a  term  of  years  to  arise  by  way  of  bargain  and 
sale  out  of  an  estate  of  freehold.  If  A.,  tenant  in  fee  simple, 


506   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

bargained  and  sold  his  lands  to  B.  for  ten  years,  there  was 
no  necessity  for  any  enrolment,  or  even  for  any  writing  to 
evidence  the  transaction.  The  Statute  of  Uses  at  once 
operated  upon  the  bargain  and  sale;  one  person,  the  bar- 
gainer, was  seised  to  the  use  of  another,  the  bargainee,  and 
there  was  no  necessity  for  enrolment,  inasmuch  as  the  bar- 
gain and  sale  did  not  purport  to  create  an  estate  of  inheritance 
or  freehold. 

After  a  time  an  ingenious  conveyancer  bethought  him  of 
availing  himself  of  a  bargain  and  sale  as  a  secret  mode  of 
conveying  freehold  interests  in  lands,  thus  avoiding  the  ne- 
cessity of  any  livery  of  seisin  or  of  enrolment.  It  was  after 
some  doubt  at  length  held  by  the  Court  of  Wards1  that  a 
bargain  and  sale  for  a  term  of  years  gave  to  the  lessee  by 
force  of  the  words  of  the  Statute  of  Uses  "possession"  of  his 
term  as  if  he  had  actually  entered  on  the  land,  at  all  events 
for  the  purpose  of  being  capable  of  taking  by  a  simple  deed 
a  release  of  the  reversion.2  Thus  if  A.,  tenant  in  fee  sim- 
ple, bargained  and  sold  the  manor  of  Dale  to  B.  for  a  year, 
and  the  day  after  executed  a  release  of  the  reversion  in  fee 
to  B.  and  his  heirs,  he  would  by  the  bargain  and  sale  have 
immediately  vested  in  him  an  estate  for  a  year  in  possession. 
He  would  thereupon  become  capable  of  taking  a  release,  and 
so  soon  as  the  release  was  executed,  the  smaller  estate  and 

'In  the  i8th  of  James  I.,  Lut-widge  v.  Mitton,  Croke's  Reports,, 
James,  604. 

'"Where  one  by  indenture,  in  consideration  of  money,  bargaineth 
and  selleth,  demiseth  andgranteth  land  for  years,  and  the  next  day  after, 
by  indenture  reciting  that  grant  and  demise,  grants  the  reversion  to 
divers  uses,  the  lessee  attorns,  it  is  a  good  grant  of  the  reversion, 
although  there  were  not  any  proof  that  the  bargainee  entered  before  this 
grant  of  the  reversion,  or  that  the  bargainer  waived  the  possession  ;  for 
the  lessee  shall  be  adjudged  in  actual  possession  by  the  statute  of  27 
Hen.  8,  c.  16,  of  uses,  and  the  reversion  is  immediately  divided  from 
the  possession,  and  he  hath  a  good  reversion  ;  but  in  case  of  a  lease  for 
years  at  the  common  law,  until  the  lessee  enters,  or  the  lessor  waive  the 
possession,  the  reversion  is  not  divided,  nor  passeth  by  the  words  of 
'grant  of  a  reversion.'  " — Per  Curiam  in  Iseham  v.  Morrice,  3  Cro.  Car. 
(1629),  no. 


UNDER    THE    STATUTE    OF    USES.  507 

the  larger  would  coalesce,  and  the  term  be  "merged"  or 
sunk  in  the  larger  estate,  whereupon  B.  would  become  ten- 
ant in  fee  simple  in  possession. 

WILLIAMS,  REAL  PROP,  (i/th  ed.),  236-238.  This  bar- 
gain and  sale  for  a  year,  followed  by  a  release,  is  the  modern 
conveyance  by  lease  and  release  .  .  .  and  although  the 
efficiency  of  this  method  was  at  first  doubted,  it  was,  for 
more  than  two  centuries,  the  common  means  of  conveying 
lands  in  this  country.  It  will  be  observed  that  the  bargain 
and  sale  (or  lease  as  it  is  called)  for  a  year  derived  its  effect 
from  the  Statute  of  Uses ;  the  release  was  quite  independent 
of  that  statute,  having  existed  long  before,  and  being  as 
ancient  as  the  common  law  itself.  The  Statute  of  Uses  was 
employed  in  the  conveyance  by  lease  and  release  only  for  the 
purpose  of  giving  to  the  intended  releasee,  without  his  ac- 
tually entering  on  the  lands,  such  an  estate  as  would  enable 
him  to  receive  the  release.  When  this  estate  for  one  year 
was  obtained  by  the  lease,  the  Statute  of  Uses  had  per- 
formed its  part,  and  the  fee  simple  was  conveyed  to  the  re- 
leasee by  the  release  alone.  The  release  would,  before  the 
Statute  of  Uses,  have  conveyed  the  fee-simple  to  the  re- 
leasee, supposing  him  to  have  obtained  that  possession  for 
one  year^  which,  after  the  statute,  was  given  him  by  the 
lease.  After  the  passing  of  the  Statute  of  Frauds  it  became 
necessary  that  every  bargain  and  sale  of  lands  for  a  year 
should  be  put  into  writing,  as  no  pecuniary  rent  was  ever  re- 
served, the  consideration  being  usually  five  shillings,  the  re- 
ceipt of  which  was  acknowledged,  though  in  fact  it  was 
never  paid.  And  the  bargain  and  sale,  or  lease  for  a  year, 
was  usually  made  by  deed,  though  this  was  not  absolutely 
necessary.  It  was  generally  dated  the  day  before  the  date  of 
the  release,  though  executed  on  the  same  day  as  the  release, 
immediately  before  the  execution  of  the  latter.  .  .  . 

Sue.  GILB.  USES,  232.  A  conveyance  by  lease  and  release 
is,  like  a  bargain  and  sale  and  covenant  to  stand  seised,  what 


508   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

is  termed  an  innocent  conveyance.  It  will  not,  therefore, 
create  a  discontinuance  or  operate  as  a  forfeiture  or  destroy 
a  contingent  remainder,  although  it  may  exclude  a  contingent 
remainder  by  uniting  the  particular  estate  with  the  reversion. 
— Sugden's  note. 

4  KENT.  COM.,  494-496.  Of  Lease  and  Release. — This  is 
the  usual  mode  of  conveyance  in  England  because  it  does 
not  require  the  trouble  of  enrolment.  ...  It  was  the 
mode  universally  in  practice  in  New  York  until  the  year 
1788.  The  revision  of  the  statute  law  of  the  State  at  that 
period,  which  re-enacted  all  the  English  statute  law  deemed 
proper  and  applicable,  and  which  repealed  the  British  stat- 
utes in  force  in  New  York  while  it  was  a  colony,  re- 
moved all  apprehension  of  the  necessity  of  enrolment 
of  deeds  of  bargain  and  sale,  and  left  that  short,  plain 
and  excellent  mode  of  conveyance  to  its  free  operation. 
The  consequence  was,  that  the  conveyance  by  lease  and  re- 
lease, which  required  two  deeds  or  instruments  instead 
of  one,  fell  immediately  into  total  disuse  and  will  never  be 
revived. 

Of  Bargain  and  Sale. — This  is  the  mode  of  conveyance 
most  prevalent  in  the  United  States,  and  it  was  in  universal 
use  in  New  York  after  1788,  and  prior  to  the  introduction  of 
the  grant  by  the  Revised  Statutes,  in  January,  1830.  .  .  . 
Nothing  can  be  more  liberal  than  the  rules  of  law,  as  to  the 
words  requisite  to  create  a  bargain  and  sale.  There  must  be 
a  valuable  consideration,  and  then  any  words  that  will 
raise  a  use  will  amount  to  a  bargain  and  sale. 

N.  Y.  REAL  PROP.  LAW,  §  211.  Deeds  of  bargain  and 
sale,  and  of  lease  and  release  may  continue  to  be  used ;  and 
are  to  be  deemed  grants,  subject  to  aH  the  provisions  of  law 
in  relation  thereto. 


CHAPTER  II 

MODERN  STATUTORY  FORMS. 

WILLIAMS,  REAL  PROP.  (i7th  ed.),  232.  In  modern 
times,  down  to  the  year  1841,  the  kind  of  conveyance  em- 
ployed, on  every  ordinary  purchase  of  a  freehold  estate,  was 
called  a  lease  and  release ;  and  for  every  such  transaction, 
two  deeds  were  always  required.  .  .  . 

ID.,  238.  This  cumbrous  contrivance  of  two  deeds  to 
every  purchase  continued  in  constant  use  down  to  the  year 
1841,  when  the  Act  was  passed  to  which  we  have  before  re- 
ferred.1 This  a^t  provided  that  every  deed  of  release  of  a 
freehold  estate,  which  should  be  expressed  to  be  made  in 
pursuance  of  the  act,  should  be  as  effectual  as  if  the  releas- 
ing party  had  also  executed,  in  due  form,  a  lease  for  a  year, 
for  giving  effect  to  such  release,  although  no  such  lease  for 
a  year  should  be  executed. 

In  the  year  1845  it  was  provided  by  the  Act  to  amend  the 
law  of  real  property  that  after  the  ist  of  October,  1845,  a^ 
corporeal  tenements  and  hereditaments  shall,  as  regards  the 
conveyance  of  the  immediate  freehold  thereof,  be  deemed  to 
lie  in  grant  as  well  as  in  livery.  We  have  seen  that,  at  com- 
mon law,  corporeal  hereditaments  were  said  to  lie  in  livery, 
as  being  transferable  by  delivery  of  possession ;  while  incor- 
poreal hereditaments  were  said  to  lie  in  grant,  because  a 
deed  of  grant  was  required  to  convey  them,  if  desired  to  be 
transferred  apart  from  the  possession  of  anything  corporeal. 
Since  this  enactment,  therefore,  a  simple  deed  of  grant  has 
been  sufficient  for  the  transfer  of  all  freehold  estates  in  pos- 
session, or  corporeal  hereditaments.  And  the  method  so  in- 

1  Stat  4  &  5  Viet.,  c.  21.  repealed  as  obsolete  by  Stat.  37  &  38  Viet., 
c  96. 


5IO   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

troduced  of  conveying  freeholds  by  deed  of  grant  has  ever 
since  superseded  all  others  in  practice. 

3  WASHBURN,  REAL  PROP.  (5th  ed.),  380.  Many  of  the 
States  have  prescribed  forms  of  deeds  in  their  statutes ;  but 
this  has  generally  been  regarded  rather  as  a  matter  of  direc- 
tion and  declaration  that  such  a  form  would  be  sufficient, 
than  that  it  should  be  required.  Most  of  these  statutes,  in 
fact,  directly  or  indirectly  refer  to  the  common-law  modes 
as  familiar  and  effectual  forms  of  conveyance.  Thus,  while 
the  form  of  deed  in  common  use  in  Massachusetts  is  bor- 
rowed from  the  ancient  charter  of  feoffment,  modified  by  a 
declaration  of  the  uses  to  which  the  estate  is  to  be  held,  the 
statute  expressly  refers  to  "bargain  and  sale,"  and  "other 
Hke  conveyance  of  an  estate,"  and  declares  that  "a  deed  of 
quitclaim  and  release,  of  the  form  in  common  use  in  this 
State,  shall  be  sufficient  to  pass  all  the  estate  which  the 
grantor  could  lawfully  convey  by  a  deed  of  bargain  and 
sale."1 

ID.,  384.  It  may  be  said,  to  sum  up  the  foregoing  re- 
marks, that  in  almost  all  of  the  United  States  a  writing 
which  contains  a  grantor,  a  grantee,  a  description  of  the 
land  or  interest  therein  granted,  and  words  which  may  be 
construed  to  imply  a  grant  by  the  grantor  to  the  grantee,  is 
a  sufficient  deed,  if  executed  according  to  the  law  of  the 
State  where  the  land  is  situated.  Such  a  deed  is  not  strictly 
a  deed  of  feoffment,  as  no  livery  of  seisin  is  necessary  ;- nor 
is  it  a  deed  operating  by  the  statute  of  uses.  It  is  rather  a 
deed  resulting  from  the  various  statutes  which  have  been 
from  time  to  time  enacted  in  the  various  States,  and  it  is  sub- 
stantially and  practically  the  same  in  all  the  States.  The  effect 
of  these  statutes  is  well  described  in  two  Maine  cases  pre- 
viously cited,  in  which  the  court  says  that,  under  the  stat- 
utes of  the  State,  a  person  owning  real  estate,  having  a  right 
of  entry  on  it,  whether  seised  of  it  or  not,  may  convey  such 
interest,  or  any  part  of  it,  by  a  deed  acknowledged  and  re- 
1  Mass.  Pub.  Stat.,  c.  120.  §§  2,  4. 


MODERN    STATUTORY    FORMS.  5!  I 

corded,  with  such  limitations  as  the  grantor  pleases,  pro- 
vided they  do  not  violate  any  rule  of  public  policy. 

Thus,  in  Wyman  v.  Brown,1  Walter,  J.,  says :  "  We  are 
also  of  opinion  that  effect  may  be  given  to  such  deeds  (of  a 
future  estate)  by  force  of  our  own  statutes,  and  indepen- 
dently of  the  statute  of  Uses.  Our  deeds  are  not  framed  to 
convey  a  use  merely,  relying  upon  the  statute  to  annex  the 
legal  title  to  the  use.  They  purport  to  convey  the  land  it- 
self, and  being  duly  acknowledged  and  recorded,  as  our 
statutes  require,  operate  more  like  feoffments  than  like  con- 
veyances under  the  statute  of  Uses."  .  .  .  This  being 
the  case,  there  seems  to  be  little  necessity  left  for  the  opera- 
tion of  the  statute  of  Uses,  although  it  is  often  mentioned 
by  the  courts  as  supporting  deeds  of  future  interests.  There 
are,  however,  cases  where  the  conveyance  does  not  contain 
suitable  words  to  imply  a  grant,  but  does  contain  words 
which  may  fairly  imply  a  covenant  or  agreement  in  regard 
to  the  title  of  the  land.  In  such  cases,  the  statute  of  Uses 
is  still  sometimes  relied  upon  to  give  effect  to  these  deeds 
as  deeds  of  bargain  and  sale,  or  covenant  to  stand  seised. 
A  more  effectual  and  common  way  of  enforcing  such  in- 
struments, where  a  valuable  consideration  has  been  paid,  is 
to  apply  to  a  court  of  equity  to  compel  a  valid  legal  convey- 
ance of  the  land.  Under  the  statutes  before  referred  to,  the 
deeds  operate  as  deeds  of  feoffment ;  yet  livery  of  seisin  is 
unnecessary,  the  deed  itself  vesting  the  seisin  in  the  grantee. 

4  KENT.  COM.,  301,  note.  Lord  Hardwicke  is  reported  to 
have  said,  in  the  course  of  his  opinion,  in  Hopkins  v.  Hop- 
kins ( i  Atk.  Rep.  591 ) ,  that  the  Statute  of  Uses  had  no  other 
effect  than  to  add,  at  most,  three  words  to  a  conveyance. 
This  was  rather  too  strongly  expressed ;  but  I  presume  the 
abolition  of  uses  with  us  will  not  have  much  greater  effect. 
It  was  the  abolition  of  a  phantom.  The  word  grant  is  not 
more  intelligible  to  the  world  at  large  than  the  words  bar- 
gain and  sale;  and  the  fiction  indulged  for  200  years,  that 

1 50  Me.  139. 


512   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

the  bargain  raised  a  use,  and  the  statute  transferred  the  pos- 
session to  the  use,  was  as  cheap  and  harmless  as  anything 
could  possibly  be.  It  would,  perhaps,  have  been  as  wise  to 
have  left  the  Statute  of  Uses  where  it  stood,  and  to  have  per- 
mitted the  theory  engrafted  upon  it  to  remain  untouched, 
considering  that  it  had  existed  so  long,  and  had  insinuated 
itself  so  deeply  and  so  thoroughly  into  every  branch  of  the 
jurisprudence  of  real  property. 

N.  Y.  REAL  PROP.  LAW,  §  207.  An  estate  or  interest  in 
real  property,  other  than  a  lease  for  a  term  not  exceeding 
one  year,  or  any  trust  or  power  over  or  concerning  real 
property,  or  in  any  manner  relating  thereto,  cannot  be 
created,  granted,  assigned,  surrendered,  or  declared,  unless 
by  act  or  operation  of  law,  or  by  a  deed  or  conveyance  in 
writing,  subscribed  by  the  person  creating,  granting,  as- 
signing, surrendering  or  declaring  the  same,  or  by  his  law- 
ful agent,  thereunto  authorized  by  writing.  But  this  sec- 
tion does  not  affect  the  power  of  a  testator  in  the  disposition 
of  his  real  property  by  will ;  nor  prevent  any  trust  from  aris- 
ing or  being  extinguished  by  implication  or  operation  of 
law,  nor  any  declaration  of  trust  from  being  proved  by 
writing  subscribed  by  the  person  declaring  the  same. 

LOGAN'S  ANN.  R.  P.  L.  62.  Parol  acts  and  declarations 
and  gifts  may  also  effect  by  estoppel  a  transfer  in  equity,  of 
the  title  to  real  estate,  notwithstanding  the  statutes  above 
cited,  particularly  if  possession  is  taken  and  improvements 
made,  and  innocent  parties  are  misled  by  acts  or  declara- 
tions of  the  owner.  People  v.  Goodwin,  5  N.  Y.  568. — 
Logan's  note. 


CHAPTER  III. 

DEVISE. 

LIT.,  §  167.  Also,  in  some  boroughs,  by  the  custome,  a 
man  may  devise  by  -his  testament  his  lands  and  tenements, 
which  he  hath  in  fee  simple  within  the  same  borough  at  the 
time  of  his  death ;  and  by  force  of  such  devise  he  to  whome 
such  devise  is  made,  after  the  death  of  the  devisor,  may  en- 
ter into  the  tenements  so  to  him  devised,  to  have  and  to  hold 
to  him,  after  the  forme  and  effect  of  the  devise,  without  any 
liverie  of  seisin  thereof  to  be  made  to  him,  &c. 

Co.  LIT.,  in,  b.  And  well  said  Littleton,  that  lands  and 
tenements  were  devisable  in  burghes  by  custome;  for 
that  at  the  common  law  no  lands  or  tenements  were  de- 
visable by  any  last  will  and  testament,  nor  ought  to  be  trans- 
ferred from  one  to  another,  but  by  solemne  livery  of  seisin, 
matter  of  record,  or  sufficient  writing ;  but  as  Littleton  here 
saith,  that  by  certain  private  customes  in  some  burghes  they 
are  devisable.  But  now  since  Littleton  wrote,  by  the  stat- 
utes of  32  and  34  H.  8,  lands  and  tenements  are  generally 
devisable  by  the  last  will  in  writing  of  the  tenant  in  fee 
simple,  whereby  the  ancient  common  law  is  altered,  where- 
upon many  difficult  questions,  and  most  commonly  dis- 
herison of  heires  (when  the  devisors  are  pinched  by  the 
messengers  of  death)  doe  arise  and  happen.  But  these  stat- 
utes take  not  away  the  custome  to  devise,  whereof  Littleton 
speaketh ;  for  though  lands  devisable  by  custome  be  holden 
by  knights  service,  yet  may  the  owner  devise  the  whole  land 
by  force  of  the  custome,  and  that  shall  stand  good  against 
the  heire  for  the  whole.  But  the  devise  of  lands  holden  by 
knights  service  by  force  of  the  statutes  is  utterly  void  for  * 


514   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

third  and  the  same  shall  descend  to  the  heire.  If  he  hath 
any  lands  holden  by  knights  service  in  capite,  and  lands  in 
socage,  he  can  devise  but  two  parts  of  the  whole;  but  if  he 
hold  lands  by  knights  service  of  the  king,  and  not  in  capite, 
or  of  a  meane  lord,  and  hath  also  lands  in  socage,  he  may 
devise  two  parts  of  his  land  holden  by  knights  service,  and 
all  his  socage  lands.  If  he  holds  any  land  of  the  king  in 
capite,  and  by  act  executed  in  his  life-time  he  conveyeth  any 
part  of  his  lands  to  the  use  of  his  wife  or  of  his  children,  or 
payment  of  his  debts,  though  it  be  with  power  of  revocation, 
he  can  devise  by  his  will  no  more,  but  to  make  up  the  land 
so  conveyed  two  parts  of  the  whole.  And  if  the  lands  so 
conveyed  amount  to  two  parts  or  more,  then  he  can  devise 
nothing  by  his  will.  But  if  he  hath  land  onely  that  is  holden 
in  socage,  then  he  may  devise  by  his  will  all  his  socage  land ; 
so  as  it  is  apparent  that  the  benefit  of  the  lords  was  more 
carefully  provided  for  than  the  good  of  the  heire.  .  .  . 

If  a  man  make  a  feoffment  in  fee  of  his  lands  holden  by 
knights  service  to  the  use  of  such  person  and  persons,  and 
of  such  estate  and  estates,  &c.,  as  he  shall  appoint  by  his 
will,  in  this  case,  by  operation  of  law  the  use  and  state  vests 
in  the  feoffor,  and  he  is  seised  of  a  qualified  fee.  In  this 
case,  if  the  feoffor  limit  estates  by  his  will,  by  force,  and  ac- 
cording to  his  power,  there  the  uses  and  estates  growing 
out  of  the  feoffment  are  good  for  the  whole,  and  the  last 
will  is  but  directory.  But  in  that  case,  if  the  feoffor  had 
devised  the  land  (as  owner  thereof)  without  any  reference 
to  the  feoffment  and  power  thereby  given  then  taking  effect 
by  the  will,  it  is  void  for  a  third  part.  But  if  he  had  for- 
merly conveyed  two  parts  to  the  use  of  his  wife,  &c.,  and 
after  devised  the  residue  by  his  will  without  any  reference 
to  his  power  by  the  feoffment,  yet  this  will  shall  enure  tcr 
declare  the  use  upon  the  feoffment  because  he  had  no  powef 
as  owner  of  the  land  to  devise  any  part  of  it.  But  if  the 
feoffment  had  been  made  to  the  use  of  his  last  will,  although 
he  deviseth  the  land  with  reference  to  the  feoffment,  yet  it 
taketh  effect  only  by  the  will,  and  not  by  the  feoffment.  All 


DEVISE.  515 

which  and  many  other  points    of    intricate    and    abstruse 
learning  you  shall  more  largely  read  in  my  Reports. 

LIT.,  §  168.  Also,  though  a  man  may  not  grant,  nor  give, 
his  tenements  to  his  wife  during  the  coverture,  for  that  his 
wife  and  he  be  but  one  person  in  the  law ;  yet  by  such  cus- 
tome  he  may  devise  by  his  testament  his  tenements  to  his 
wife,  to  have  and  to  hold  to  her  in  fee  simple,  or  in  fee  taile 
or  for  tearme  of  life,  or  yeares,  for  that  such  devise  taketh 
no  effect  but  after  the  death  of  the  devisor.  And  if  a  man 
at  divers  times  makes  divers  testaments,  and  divers  devises, 
&c.,  yet  the  last  devise  and  will  made  by  him  shall  stand,  and 
the  others  are  voyd. 

2  BL.  COM.,  373-376.  It  seems  sufficiently  clear,  that,  be- 
fore the  conquest,  lands  were  devisable  by  will.  But,  upon 
the  introduction  of  the  military  tenures,  the  restraint  of  de- 
vising lands  naturally  took  place,  as  a  branch  of  the  feodal 
doctrine  of  non-alienation  without  the  consent  of  the  lord. 
And  some  have  questioned  whether  this  restraint  (which 
we  may  trace  even  from  the  ancient  Germans)  was  not 
founded  upon  truer  principles  of  policy  than  the  power  of 
wantonly  disinheriting  the  heir  by  will,  and  transferring  the 
estate,  through  the  dotage  or  caprice  of  the  ancestor,  from 
those  of  his  blood  to  utter  strangers.  .  .  . 

However  this  be,  we  find  that,  by  the  common  law  of 
England  since  the  conquest,  no  estate,  greater  than  for  term 
of  years,  could  be  disposed  of  by  testament ;  except  only  in 
Kent,  and  in  some  antient  burghs,  and  a  few  particular 
manors,  where  their  Saxon  immunities  by  special  indul- 
gence subsisted.  And  though  the  feodal  restraint  on  aliena- 
tions by  deed  vanished  very  early,  yet  this  on  wills  con- 
tinued for  some  centuries  after :  from  an  apprehension  of 
infirmity  and  imposition  on  the  testator  in  extremis,  which 
made  such  devises  suspicious.  Besides,  in  devises  there 
was  wanting  that  general  notoriety,  and  public  designation 
of  the  snccessor,  which  in  descent  is  apparent  to  the  neigh- 


516   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

borhood,  and  which  the  simplicity  of  the  common  law  al- 
ways required  in  every  transfer  and  new  acquisition  of 
property. 

But  when  ecclesiastical  ingenuity  had  invented  the  doc- 
trine of  uses  as  a  thing  distinct  from  the  land,  uses  began 
to  be  devised  very  frequently,  and  the  devisee  of  the  use 
could  in  chancery  compel  its  execution.  For  it  is  observed 
by  Gilbert1  that,  as  the  popish  clergy  then  generally  sat  in 
the  court  of  chancery,  they  considered  that  men  are  most 
liberal  when  they  can  enjoy  their  possessions  no  longer: 
and  therefore  at  their  death  would  choose  to  dispose  of  them 
to  those  who,  according  to  the  superstition  of  the  times, 
could  intercede  for  their  happiness  in  another  world.  But, 
when  the  statute  of  uses  had  annexed  the  possession  to  the 
use,  these  uses,  being  now  the  very  land  itself,  became  no 
longer  devisable,  which  might  have  occasioned  a  great  revo- 
lution in  the  law  of  devises  had  not  the  statute  of  wills  been 
made  about  five  years  after,  viz.,  32  Hen.  VIII.  c.  i,  ex- 
plained by  34  Hen.  VIII.  c.  5,  which  enacted  that  all  persons 
being  seised  in  fee-simple  (except  feme-coverts,  infants, 
idiots,  and  persons  of  non-sane  memory)  might  by  will  and 
testament  in  writing  devise  to  any  other  person,  except  to 
bodies  corporate,  two-thirds  of  their  lands,  tenements,  and 
hereditaments  held  in  chivalry,  and  the  whole  of  those  held 
in  socage :  which  now,  through  the  alteration  of  tenures  by 
the  statute  of  Charles  the  Second,  amounts  to  the  whole  of 
their  landed  property,  except  their  copyhold  tenements.  .  .  . 

With  regard  to  devises  in  general,  experience  soon 
showed  how  difficult  and  hazardous  a  thing  it  is,  even  in 
matters  of  public  utility,  to  depart  from  the  rules  of  the 
common  law ;  which  are  so  nicely  constructed  and  so  arti- 
ficially connected  together,  that  the  least  breach  in  any  one 
of  them  disorders  for  a  time  the  texture  of  the  whole.  In- 
numerable frauds  and  perjuries  were  quickly  introduced  by 
this  parliamentary  method  of  inheritance;  for  so  loose  was 
the  construction  made  upon  this  act  by  the  courts  of  law, 
1  On  Devises,  7. 


DEVISE.  5  1 7 

that  bare  notes  in  the  handwriting  of  another  person  were 
allowed  to  be  good  wills  within  the  statute.  To  remedy 
which,  the  statute  of  frauds  and  perjuries,  29  Car.  II.  c.  3, 
directs  that  all  devises  of  lands  and  tenements  shall  not  only 
be  in  writing,  but  signed  by  the  testator,  or  some  other  per- 
son in  his  presence,  and  by  his  express  direction ;  and  be  sub- 
scribed, in  his  presence,  by  three  or  four  credible  witnesses. 
And  a  solemnity  nearly  similar  is  requisite  for  revoking  a 
devise  by  writing;  though  the  same  may  be  also  revoked 
by  burning,  cancelling,  tearing,  or  obliterating  thereof  by 
the  devisor,  or  in  his  presence  and  with  his  consent :  as  like- 
wise impliedly,  by  such  a  great  and  entire  alteration  in  the 
circumstances  and  situation  of  the  devisor  as  arises  from 
marriage  and  the  birth  of  a  child. 

ID.,  378.  A  will  of  lands,  made  by  the  permission  and 
under  the  control  of  these  statutes,  is  considered  by  the 
courts  of  law  not  so  much  in  the  nature  of  a  testament,  as 
of  a  conveyance  declaring  the  uses  to  which  the  land  shall 
be  subject :  with  this  difference,  that  in  other  conveyances 
the  actual  subscription  of  the  witnesses  is  not  required  by 
law,  though  it  is  prudent  for  them  so  to  do,  in  order  to  as- 
sist their  memory  when  living,  and  to  supply  their  evidence 
when  dead :  but  in  devises  of  lands  such  subscription  is  now 
absolutely  necessary  by  statute,  in  order  to  identify  a  con- 
veyance, which  in  its  nature  can  never  be  set  up  till  after 
the  death  of  the  devisor.  And  upon  this  notion,  that  a  de- 
vise affecting  lands  is  merely  a  species  of  conveyance,  is 
founded  this  distinction  between  such  devises  and  testa- 
ments of  personal  chattels ;  that  the  latter  will  operate  upon 
whatever  the  testator  dies  possessed  of,  the  former  only 
upon  such  real  estates  as  were  his  at  the  time  of  executing 
and  publishing  his  will.  Wherefore  no  after-purchased 
lands  will  pass  under  such  a  devise,  unless,  subsequent 
to  the  purchase  or  contract,  the  devisor  republishes  his, 
will.1 

1  But  the  statute  I  Viet.,  c.  26,  has  abolished  this  distinction,  and  alP 
property,  of  whatever  kind,  or  of  which  a  man  is  possessed  or  entitled  at 


518   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

32  HEN.  VIII.,  c.  i,  §  i.  [Be  it  enacted]1  that  all  and 
every  person  and  persons,  having,  or  which  hereafter  shall 
have,  any  manors,  lands,  tenements,  or  hereditaments, 
holden  in  soccage,  or  of  the  nature  of  soccage  tenure,  and 
not  having  any  manors,  lands,  tenements  or  hereditaments, 
holden  of  the  King  our  sovereign  lord  by  knights  service, 
by  soccage  tenure  in  chief,  or  of  the  nature  of  soccage  ten- 
ure in  chief,  nor  of  any  other  person  or  persons  by  knights 
service,  from  the  twentieth  day  of  July  in  the  year  of  our 
Lord  God  MDXL.,  shall  have  full  and  free  liberty,  power 
and  authority  to  give,  dispose,  will  and  devise,  as  well  by  his 
last  will  and  testament  in  writing,  or  otherwise  by  any  act 
or  acts  lawfully  executed  in  his  life,  all  his  said  manors, 
lands,  tenements  or  hereditaments,  or  any  of  them,  at  his 
free  will  and  pleasure ;  any  law,  statute  or  other  thing 
heretofore  had,  made  or  used  to  the  contrary  notwithstand- 
ing. 

§  2.  And  all  and  every  person  and  persons,  having 
manors,  lands,  tenements  or  hereditaments,  holden  of  the 
King  our  sovereign  lord,  his  heirs  or  successors,  in  soccage, 
or  of  the  nature  of  soccage  tenure  in  chief,  and  having  any 
manors,  lands,  tenements  or  hereditaments  holden  of  any 
other  person  or  persons  in  soccage,  or  of  the  nature  of  soc- 
cage tenure,  and  not  having  any  manors,  lands,  tenements  or 
hereditaments,  holden  of  the  King  our  sovereign  lord  by 
knights  service,  nor  of  any  other  lord  or  person  by  like  ser- 
vice, from  the  twentieth  day  of  July  in  the  said  year  of  our 
Lord  God  MDXL.  shall  have  full  and  free  liberty,  power 
and  authority  to  give,  will,  dispose  and  devise,  as  well  by 
his  last  will  and  testament  in  writing,  or  otherwise,  by  any 
act  or  acts  lawfully  executed  in  his  life,  all  his  said  manors, 
lands,  tenements  and  hereditaments,  or  any  of  them,  at  his 
free  will  and  pleasure ;  any  law,  statute,  custom  or  other 

.the  time  of  his  death,  passes  by  his  will  :  as  the  instrument  now,  with 
reference  to  the  real  and  personal  estate  comprised  in    it,  speaks   and 
takes  effect  as  if  executed  immediately  before  the  testator's  death,  unless 
a.  contrary  intention  appears  by  the  document  itself. — Kerr. 
1  The  preamble  is  omitted. 


DEVISE.  519 

thing  heretofore  had,  made  or  used  to  the  contrary  notwith- 
standing. 

§  3.  Saving  alway  and  reserving  to  the  King  our  sov- 
ereign lord,  his  heirs  and  successors,  all  his  right,  title  and 
interest  of  primer  seisin  and  reliefs,  and  also  all  other  rights 
and  duties  for  tenures  in  soccage,  or  of  the  nature  of  soc- 
cage  tenure  in  chief,  as  heretofore  hath  been  used  and  ac- 
customed, the  same  manors,  lands,  tenements  or  heredita- 
ments to  be  taken,  had  and  sued  out  of  and  from  the  lands 
of  his  Highness,  his  heirs  and  successors,  by  the  person  or 
persons  to  whom  any  such  manors,  lands,  tenements  or  her- 
editaments shall  be  disposed,  willed  or  devised,  in  such  and 
like  manner  and  form,  as  hath  been  used  by  any  heir  or 
heirs  before  the  making  of  this  statute ;  and  saving  and  re- 
serving also  fines  for  alienations  of  such  manors,  lands, 
tenements  or  hereditaments  holden  of  the  King  our  sov- 
ereign lord  in  soccage,  or  of  the  nature  of  soccage  tenure  in 
chief,  whereof  there  shall  be  any  alteration  of  freehold  or  in- 
heritance, made  by  will  or  otherwise,  as  is  aforesaid. 

§  7.  And  be  it  enacted  by  authority  aforesaid,  That  all 
and  singular  person  and  persons,  having  manors,  lands, 
tenements,  or  hereditaments  of  estate  of  inheritance,  holden 
of  the  King  in  chief  by  knights  service,  and  having  other 
manors,  lands, .  tenements  or  hereditaments  holden  of  the 
King,  or  of  any  other  person  or  persons  by  knights  service, 
or  otherwise,  every  such  person  and  persons  from  the  said 
twentieth  day  of  July  shall  have  full  power  and  authority 
to  give, 'dispose,  will  or  assign  by  his  last  will  in  writing  or 
otherwise,  by  any  act  or  acts  lawfully  executed  in  his  life, 
two  parts  of  the  same  manors,  lands,  tenements  or  heredita- 
ments, in  three  parts  to  be  divided,  or  else  as  much  of  the 
same  manors,  lands,  tenements  or  hereditaments,  as  shall 
extend  or  amount  to  the  yearly  value  of  two  parts  of  the 
same,  in  three  parts  to  be  divided,  in  certainty  and  by  special 
divisions,  as  it  may  be  known  in  severalty,  to  and  for  the 
advancement  of  his  wife,  preferment  of  his  children,  pay- 
ment of  his  debts,  or  otherwise  at  his  will  and  pleasure ;  any 


52O   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

law,  statute,  custom,  or  other  thing  to  the  contrary  thereof 
notwithstanding. 

29  CAR.  II.  (1676),  c.  3.  Statute  of  Frauds. — §  5.  And  be 
it  further  enacted  by  the  authority  aforesaid,  That  from  and 
after  the  said  four  and  twentieth  day  of  June  all  devises  and 
bequests  of  any  lands  or  tenements,  devisable  either  by  force 
of  the  statute  of  wills,  or  by  this  statute,  or  by  force  of  the 
custom  of  Kent,  or  the  custom  of  any  borough,  or  any  other 
particular  custom,  shall  be  in  writing,  and  signed  by  the 
party  so  devising  ^the  same,  or  by  some  other  person  in  his 
presence  and  by  his  express  directions,  and  shall  be  attested 
and  subscribed  in  the  presence  of  the  said  devisor  by  three 
or  four  credible  witnesses,  or  else  they  shall  be  utterly  void 
and  of  none  effect. 

7  WM.  IV.  &  i  VICT.  (1837),  c.  26.  Wills  Act.—§  3.  And 
be  it  further  enacted,  That  it  shall  be  lawful  for  every  Per- 
son to  devise,  bequeath,  or  dispose  of,  by  his  Will  executed 
in  manner  hereinafter  required,  all  Real  Estate  and  all  Per- 
sonal Estate  which  he  shall  be  entitled  to,  either  at  Law  or 
in  Equity,  at  the  Time  of  his  Death,  and  which  if  not  so  de- 
vised, bequeathed,  or  disposed  of  would  devolve  upon  the 
Heir  at  Law,  or  Customary  Heir  of  him,  or,  if  he  became 
entitled  by  Descent,  of  his  Ancestor,  or  upon  his  Executor 
or  Administrator;  and  that  the  Power  hereby  given  shall 
extend  to  all  Real  Estate  of  the  Nature  of  Customary  Free- 
hold or  Tenant  Right,  or  Customary  or  Copyhold  .  .  . 
and  also  to  Estates  pur  autre  vie,  whether  there  shall  or 
shall  not  be  any  special  Occupant  thereof,  and  whether  the 
same  shall  be  Freehold,  Customary  Freehold,  Tenant  Right, 
Customary  or  Copyhold,  or  of  any  other  Tenure,  and 
whether  the  same  shall  be  a  corporeal  or  an  incorporeal  Her- 
editament; and  also  to  all  contingent,  executory,  or  other 
future  Interests  in  any  Real  or  Personal  Estate,  whether  the 
Testator  may  or  may  not  be  ascertained  as  the  Person  or 
one  of  the  Persons  in  whom  the  same  respectively  may  be- 


DEVISE.  521 

come  vested,  and  whether  he  may  be  entitled  thereto  under 
the  Instrument  by  which  the  same  respectively  were  created, 
or  under  any  Disposition  thereof  by  Deed  or  Will ;  and  also 
to  all  Rights  of  Entry  for  Conditions  broken,  and  other 
Rights  of  Entry ;  and  also  to  such  of  the  same  Estates,  In- 
terests, and  Rights  respectively,  and  other  Real  and  Per- 
sonal Estate,  as  the  Testator  may  be  entitled  to  at  the  Time 
of  his  Death,  notwithstanding  that  he  may  become  entitled 
to  the  same  subsequently  to  the  Execution  of  his  Will. 

§  9.  And  be  it  further  enacted,  That  no  Will  shall  be 
valid  unless  it  shall  be  in  Writing,  and  executed  in  manner 
hereinafter  mentioned;  (that  is  to  say)  it  shall  be  signed  at 
the  Foot  or  End  thereof  by  the  Testator,  or  by  some  other 
Person  in  his  Presence  and  by  his  Direction ;  and  such  Sig- 
nature shall  be  made  or  acknowledged  by  the  Testator  in  the 
Presence  of  Two  or  more  Witnesses  present  at  the  same 
Time,  and  such  Witnesses  shall  attest  and  shall  subscribe 
the  Will  in  the  Presence  of  the  Testator,  but  no  Form  of 
Attestation  shall  be  necessary. 

DIGBY,  HIST.  REAL  PROP.,  Ch.  VIII.  The  operation  of 
a  will  as  a  mode  of  acquiring  rights  over  land  is  peculiar, 
and  derives  from  its  history  attributes  wholly  different  to 
those  which  characterize  a  will  of  personal  or  movable  prop- 
erty. A  will  of  personalty  inherits  to  some  extent  the  Ro- 
man conception  of  a  successio  per  universitatem.  It  confers 
on  the  executor  the  whole  of  the  testator's  rights  in  respect 
of  his  personal  property,  and  the  greater  portion  of  his 
duties.  The  executor  is  the  universal  successor  of  the  testa- 
tor. To  use  the  language  of  Roman  law,  he  is  invested  with 
the  legal  character,  persona  or  status,  of  his  testator,  so  far 
as  regards  his  personal  property. 

On  the  other  hand,  the  earliest  definite  juristic  conception 
which  was  formed  of  an  English  will  of  lands  seems  to  have 
been,  as  has  already  been  said,  that  it  operated  as  a  declara- 
tion of  the  testator's  intention  as  to  the  use  or  beneficial  in- 
terest in  lands — as,  in  fact,  a  conveyance  of  the  particular 


522   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

beneficial  interest  intended  to  be  dealt  with.  Thus  a  will  of 
lands  has  always  been  regarded  as  a  conveyance  of  a  par- 
ticular interest,  coming  into  operation  immediately  upon  the 
death  of  the  testator,  and  not  as  creating  a  succession  in  the 
sense  of  Roman  law. 

It  followed  from  the  original  conception  of  a  will  as  a 
mode  of  raising  a  use,  that  a  will,  like  any  other  mode  of 
raising  uses,  might  create  interests  arising  at  a  future  time, 
and  divesting  previous  interests  in  a  way  unknown  to  the 
common  law.  These  qualities  seem  to  have  been  imparted 
even  to  a  devise  of  lands,  which,  by  virtue  of  a  local  custom, 
was  operative  at  common  law.  .  .  .  Thus  at  the  time 
of  the  passing  of  the  Statute  of  Uses  the  conception  of  a  will 
of  lands  was  that  it  operated  as  a  declaration  of  uses,  taking 
effect  at  or  after  the  testator's  death,  and  being  subject  to 
the  same  rules  as  regulated  the  creation  of  uses  by  transac- 
tions operating  inter  vivos. 

These  characteristics  continued  to  attach  to  wills  when, 
by  the  legislation  of  Henry  VIII,  they  became  recognized  as 
a  mode  of  disposing  of  the  legal  interest  in  lands.  Just  as, 
before  the  statutes  of  Henry  VIII,  a  will  of  lands  had  been 
regarded  as  a  declaration  of  a  use,  coming  into  effect  upon 
the  testator's  death,  but  speaking  as  from  its  date  and  deal- 
ing only  with  the  interest  then  intended  to  be  conveyed ;  so, 
after  those  statutes,  a  will  of  land  operated  as  a  conveyance, 
dealing  with  the  legal  interest  possessed  by  the  testator  at 
the  date  of  the  will,  and  intended  to  be  disposed  of,  but  com- 
ing into  effect  only  at  his  death,  and  being  consequently  sub- 
ject to  revocation  at  any  time  before  his  death. 

WILLIAMS,  REAL  PROP.,  285.  Under  the  Statute  of  Hen. 
VIII,  a  will  of  lands  was  regarded  in  the  light  of  a  present 
conveyance,  to  come  into  operation  at  a  future  time,  namely, 
on  the  death  of  the  testator.  And  if  a  man,  having  made  a 
will  of  his  lands,  afterwards  disposed  of  them,  they  would 
not,  on  returning  to  his  possession,  again  become  subject  to 
his  will  without  a  subsequent  republication  or  revival  of  the 


DEVISE.  523 

will.  But  under  the  Wills  Act,  no  subsequent  conveyance 
shall  prevent  the  operation  of  the  will,  with  respect  to  such 
devisable  estate  or  interest  as  the  testator  shall  have  at  the 
time  of  his  death.1  In  the  same  manner,  the  old  statute  was 
not  considered  as  enabling  a  person  to  dispose  by  will  of  any 
lands,  except  such  as  he  was  possessed  of  at  the  time  of 
making  his  will :  so  that  lands  purchased  after  the  date  of 
the  will  could  not  be  affected  by  any  of  its  dispositions,  but 
descended  to  the  heir  at  law.  This  also  is  altered  by  the 
Wills  Act,  which  enacts2  that  every  will  shall  be  construed, 
with  reference  to  the  property  comprised  in  it,  to  speak  and 
take  effect  as  if  it  had  been  executed  immediately  before  the 
death  of  the  testator,  unless  a  contrary  intention  shall  appear 
by  the  will.  So  that  every  man  may  now  dispose,  by  his 
will,  of  all  such  landed  property,  or  real  estate,  as  he  may 
hereafter  possess  as  well  as  that  which  he  now  has.  Again, 
the  result  of  the  old  rule,  that  a  will  of  lands  was  a  present 
conveyance,  was,  that  a  general  devise  by  a  testator  of  the 
residue  of  his  lands  was,  in  effect,  a  specific  disposition  of 
such  lands  and  such  only  as  the  testator  then  had,  and  had 
not  left  to  any  one  else.  A  general  residuary  devisee  was  a 
devisee  of  the  lands  not  otherwise  left,  exactly  as  if  such 
lands  had  been  given  him  by  their  names.  The  consequence 
of  this  was,  that  if  any  other  persons  to  whom  lands  were 
left  died  in  the  lifetime  of  the  testator,  the  residuary  devisee 
had  no  claim  to  such  lands,  the  gift  of  which  thus  failed ; 
but  the  lands  descended  to  the  heir  at  law.  This  rule  is  al- 
tered by  the  Act,  under  which,3  unless  a  contrary  intention 
appeared  by  the  will,  all  real  estate  comprised  in  any  de- 
vise, which  shall  fail  by  reason  of  the  death  of  the  devisee  in 
the  lifetime  of  the  testator,  or  by  reason  of  such  devise  being 
contrary  to  law,  or  otherwise  incapable  of  taking  effect, 
shall  be  included  in  the  residuary  devise  (if  any)  contained 
in  the  will. 

'Stat.  7,  Will.  IV.  and  I  Viet.,  c.  26,  s.  23. 
*  Stat.  7,  Will.  IV.  and  i  Viet.,  c.  26,  s.  24. 
»7  Will.  IV.  and  I  Viet.,  c.  26,  s.  25. 


524   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

4  KENT  COM.,  504.  The  English  law  of  devise  was  im- 
ported into  this  country  by  our  ancestors,  and  incorporated 
into  our  colonial  jurisprudence,  under  such  modifications,  in 
some  instances,  as  were  deemed  expedient.  Lands  may  be 
devised  by  will  in  all  the  United  States ;  and  the  statute  reg- 
ulations on  the  subject  are  substantially  the  same,  and  they 
have  been  taken  from  the  English  statute  of  32  Hen.  VIII. 
and  29  Charles  II. 

N.  Y.  2  R.  S.,  56,  §  i.  All  persons,  except  idiots,  persons 
of  unsound  mind  and  infants,  may  devise  their  real  estate 
by  a  last  will  and  testament,  duly  executed  according  to  the 
provisions  of  this  title. 

§  2.  Every  estate  and  interest  in  real  property  descend- 
ible to  heirs  may  be  so  devised. 

§  5.  Every  will  that  shall  be  made  by  a  testator,  in  ex- 
press terms,  of  all  his  real  estate,  or  in  any  other  terms  de- 
noting his  intent  to  devise  all  his  real  property,  shall  be 
construed  to  pass  all  the  real  estate  which  he  was  entitled  to 
devise  at  the  time  of  his  death. 


//.  Involuntary  Alienation. 

CHAPTER  I. 
IN  FAVOR  OF  CREDITORS. 

(a)  Early  Forms  of  Transfer. 

2  BL.  COM.,  160-162.  A  fourth  species  of  estates,  defeasible 
on  condition  subsequent,  are  those  held  by  statute  merchant, 
and  statute  staple;  which  are  very  nearly  related  to  the 
vivum  vadium  before  mentioned,  or  estate  held  till  the 
profits  thereof  shall  discharge  a  debt  liquidated  or  ascer- 
tained. For  both  the  statute  merchant  and  statute  staple 
are  securities  for  money ;  the  one  entered  into  before  the 
chief  magistrate  of  some  trading  town,  pursuant  to  the 
statute  13  Edw.  I.  de  mercatoribus,  and  thence  called 
a  statute  merchant;  the  other  pursuant  to  the  statute  27 
Edw.  III.,  c.  9,  before  the  mayor  of  the  staple,  that  is  to 
say,  the  grand  mart  for  the  principal  commodities  or 
manufactures  of  the  kingdom,  formerly  held  by  act  of 
parliament  in  certain  trading  towns,  from  whence  this  se- 
curity is  called  a  statute  staple.  They  are  both,  I  say, 
securities  for  debts  acknowledged  to  be  due ;  and  originally 
permitted  only  among  traders,  for  the  benefit  of  commerce ; 
whereby  not  only  the  body  of  the  debtor  may  be  imprisoned, 
and  his  goods  seized  in  satisfaction  of  the  debt,  but  also  his 
lands  may  be  delivered  to  the  creditor,  till  out  of  the  rents 
and  profits  of  them  the  debt  may  be  satisfied;  and  during 
such  time  as  the  creditor  so  holds  the  lands,  he  is  tenant 
by  statute  merchant  or  statute  staple.  There  is  also  a  sim- 
ilar security,  the  recognizance  in  the  nature  of  a  statute 
staple,  acknowledged  before  either  of  the  chief  justices,  or 


526   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

(out  of  term)  before  their  substitutes,  the  mayor  of  the 
staple  at  Westminster  and  the  recorder  of  London ;  whereby 
the  benefit  of  this  mercantile  transaction  extended  to  all  the 
king's  subjects  in  general,  by  virtue  of  the  statute  23  Hen. 
VIII.,  c.  6,  amended  by  8  Geo.  I.,  c.  25,  which  directs  such 
recognizances  to  be  enrolled  and  certified  into  chancery. 
But  these  by  the  statute  of  frauds,  29  Car.  II.,  c.  3,  are  only 
binding  upon  the  lands  in  the  hands  of  bona  fide  purchasers, 
from  the  day  of  their  enrolment,  which  is  ordered  to  be 
marked  on  the  record. 

Another  similar  conditional  estate,  created  by  operation 
of  law,  for  security  and  satisfaction  of  debts,  is  called  an 
estate  by  elegit.  ...  At  present  I  need  only  mention 
that  it  is  the  name  of  a  writ,  founded  on  the  statute1  of 
Westm.  2,  by  which,  after  a  plaintiff  has  obtained  judgment 
for  his  debt  at  law,  the  sheriff  gives  him  possession  of  one- 
half  of  the  defendant's  lands  and  tenements,  to  be  occupied 
and  enjoyed  until  his  debt  and  damages  are  fully  paid ;  and 
during  the  time  he  so  holds  them,  he  is  called  tenant  by 
elegit.  It  is  easy  to  observe  that  this  is  also  a  mere  condi- 
tional estate,  defeasible  as  soon  as  the  debt  is  levied.  But  it 
is  remarkable  that  the  feodal  restraints  of  alienating  lands, 
and  charging  them  with  the  debts  of  the  owner,  were  soft- 
ened much  earlier  and  much  more  effectually  for  the  benefit 
of  trade  and  commerce  than  for  any  other  consideration. 
Before  the  statute  of  quia  emptores,2  it  is  generally  thought 
that  the  proprietor  of  lands  was  enabled  to  alienate  no  more 
than  a  moiety  of  them :  the  statute  therefore  of  Westm.  2 
permits  only  so  much  of  them  to  be  affected  by  the  process 
of  law,  as  a  man  was  capable  of  alienating  by  his  own  deed. 
But  by  the  statute  de  mercatoribus  (passed  in  the  same 
year)3  the  whole  of  a  man's  lands  was  liable  to  be  pledged  in 
a  statute  merchant,  for  a  debt  contracted  in  trade ;  though 
one-half  of  them  was  liable  to  be  taken  in  execution  for  any 
other  debt  of  the  owner. 

I  shall  conclude  what  I  had  to  remark  of  these  estates,  by 
1  13  Edvv.  I.,  c.  18.  'See  page  61,  supra.  *  13  Edw.  I. 


IN    FAVOR    OF    CREDITORS.  527 

statute  merchant,  statute  staple,  and  elegit,  with  the  obser- 
vation of  Sir  Edward  Coke.1  "These  tenants  have  uncertain 
interests  in  lands  and  tenements,  and  yet  they  have  but 
chattels  and  no  freeholds"  (which  makes  them  an  excep- 
tion to  the  general  rule),  "because  though  they  may  hold  an 
estate  of  inheritance,  or  for  life,  ut  liberum  tenementum, 
until  their  debt  be  paid;  yet  it  shall  go  to  their  executors: 
for  ut  is  similitudinary ;  and  though  to  recover  their  estates, 
they  shall  have  the  same  remedy  (by  assize)  as  a 
tenant  of  the  freehold  shall  have,  yet  it  is  but  the  similitude 
of  a  freehold,  and  nullum  simile  est  idem."  This  indeed 
only  proves  them  to  be  chattel  interests,  because  they  go  to 
the  executors,  which  is  inconsistent  with  the  nature  of  a 
freehold ;  but  it  does  not  assign  the  reason  why  these  estates, 
in  contradistinction  to  other  uncertain  interests,  shall  vest 
in  the  executors  of  the  tenant  and  not  the  heir;  which  is 
probably  owing  to  this :  that,  being  a  security  and  remedy 
provided  for  personal  debts  due  to  the  deceased,  to  which 
debts  the  executor  is  entitled,  the  law  has  therefore  thus 
directed  their  succession ;  as  judging  it  reasonable  from  a 
principle  of  natural  equity,  that  the  security  and  remedy 
should  be  vested  in  those  to  whom  the  debts  if  recovered 
would  belong.  For  upon  the  same  principle,  if  lands  be  de- 
vised to  a  man's  executor,  until  out  of  their  profits  the  debts 
due  from  the  testator  be  discharged,  this  interest  in  the 
lands  shall  be  a  chattel  interest,  and  on  the  death  of  such 
executor  shall  go  to  his  executors;  because  they,  being 
liable  to  pay  the  original  testator's  debts,  so  far  as  his  as- 
sets will  extend,  are  in  reason  entitled  to  possess  that  fund 
out  of  which  he  has  directed  them  to  be  paid. 

DIGBY,  HIST.  REAL  PROP.,  Ch.  V.,  §  5.  Creditors'  Rights. 
— No  branch  of  the  law  is  of  greater  practical  importance 
than  that  which  relates  to  the  rights  which  creditors  gradu- 
ally acquired  of  having  recourse  to  the  land  of  their  debtors 
for  the  payment  of  their  debts.  In  the  first  place,  the  creditor 
1 1  Inst.  42,  43. 


528   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

might  acquire  rights  over  the  debtor's  land  in  consequence 
of  a  judicial  proceeding  either  in  the  ordinary  courts  of 
common  law,  or  under  the  extraordinary  jurisdictions  created 
by  the  Statute  of  Merchants,  13  Edward  I,  stat.  3,  and  the 
Statutum  de  Stapulis,  27  Edward  III,  stat.  2,  c.  9.  Secondly, 
a  debtor  might,  without  the  intervention  of  any  judicial 
proceedings,  give  the  creditor  the  security  of  his  land  for 
a  debt. 

After  obtaining  a  judgment  in  his  favour  in  an  action  at 
common  law,  the  creditor  was  enabled  by  one  of  the  pro- 
visions of  the  Statute  of  Westminster  II  (13  Edward  I,  c. 
18)  to  choose  whether  to  have  execution  upon  the  goods  of 
the  debtor  by  the  writ  which  is  still  called  the  writ  of  fieri 
facias  or  to  have  a  writ  commanding  the  sheriff  to  "deliver 
to  him  [all  the  chattels  of  the  debtor  saving  only  his  oxen 
and  beasts  of  his  plough,  and]  the  one  half  of  his  land,  until 
the  debt  be  levied  upon  a  reasonable  price  or  extent."  This 
power  of  the  creditor  to  seize  and  sell  half  the  debtor's  land 
is  now  extended  to  the  whole.  The  writ  by  which  this  is 
effected  has  ever  since  the  Statute  of  Westminster  II  been 
called  the  writ  of  elegit. 

The  Statutes  Merchant  and  Staple  were  designed  to  give 
creditors  who  were  merchants  a  speedier  and  more  effectual 
mode  of  proceeding  to  recover  debts  than  was  afforded  by 
the  common  law.  The  merchant  creditor  was  empowered 
to  summon  his  debtor  before  the  "Mayor  of  London  or  be- 
fore some  chief  warden  of  a  city  or  of  another  good  town 
where  the  king  shall  appoint,"  and  obtain  from  him  an  ac- 
knowledgment or  recognizance  of  the  debt  and  of  the  day 
at  which  it  would  become  due.  This  acknowledgment  was 
then  formally  drawn  up,  and  if  the  debt  was  not  paid  it 
might  be  enforced  against  the  person  and  property  of  the 
debtor.  As  to  the  debtor's  lands,  "the  merchant  shall  have 
such  seisin  of  the  lands  and  tenements  delivered  unto  him 
or  his  assigns  that  he  may  maintain  a  writ  of  novel  disseisin 
if  he  be  put  out,  and  of  redisseisin  also  as  of  freehold,  to 
hold  to  him  and  his  assigns  until  the  debt  be  paid."  It 


IN    FAVOR    OF    CREDITORS.  529 

should  be  observed  that  these  remedies  by  elegit  and  stat- 
ute merchant  bound  the  lands  from  the  date  of  the  judg- 
ment in  the  former  case,  and  of  the  recognizance  in  the  lat- 
ter. 

(b)  Execution. 

4  KENT  COM.,  428-434.  Of  Title  by  Execution. — This 
species  of  title  owes  its  introduction  to  modern  statutes,  and 
it  was  unknown  to  the  common  law.  The  remedy  given  to 
the  judgment  creditor  by  the  English  law  was  a  sequestra- 
tion of  the  profits  of  the  land  by  writ  of  levari  facias,  or  the 
possession  of  a  moiety  of  the  lands  by  the  writ  of  elegit,  and, 
in  certain  cases,  of  the  whole  of  it  by  extent.  In  all  these 
cases,  the  creditor  holds  the  land  in  trust  until  the  debt  is 
discharged  by  the  receipt  of  the  rents  and  profits.  This  lim- 
ited remedy  against  the  real  estate  of  the  debtor  was  not 
deemed  sufficient  security  to  British  creditors,  in  its  applica- 
tion to  the  American  colonies ;  and  the  statute  of  5  Geo.  II., 
c.  7,  was  passed,  in  the  year  1732,  for  their  relief.  It  made 
lands,  hereditaments,  and  real  estate,  within  the  English 
colonies,  chargeable  with  debts,  and  subject  to  the  like  proc- 
ess of  execution  as  personal  estate.  Lands  were  dealt  with 
on  execution,  precisely  as  personal  property.  .  .  . 

The  practice  of  selling  real  estate  under  certain  checks 
and  modifications,  created  to  prevent  abuse  and  hardship, 
has  been  continued  and  become  permanently  established. 
The  general  regulation,  and  one  prevalent  in  most  of  the 
States,  is  to  require  the  creditor  to  resort,  in  the  first  in- 
stance, to  the  personal  estate  as  the  proper  and  pri- 
mary fund,  and  to  look  only  to  the  real  estate  after  the 
personal  estate  shall  have  been  exhausted  and  found  insuf- 
ficient. .  .  . 

The  right  to  sell  real  estate  on  execution  reaches  rever- 
sionary interests,  and  they  are  bound  by  the  judgment.  But 
in  many  of  the  States,  the  lands,  after  being  taken  by  execu- 
tion, are  to  be  duly  appraised  by  commissioners,  or  a  sher- 


53O   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

iff's  inquest,  and  set  off,  and  possession  delivered  to  the 
creditor  in  the  execution,  by  metes  and  bounds ;  and  they 
operate  as  a  conveyance  of  the  debtor's  title,  and  a  payment 
on  the  judgment  to  the  amount  of  the  valuation.  The  re- 
turn of  the  officer  when  recorded  passes  the  title.  The 
debtor  is  likewise  allowed  a  reasonable  time  to  redeem. 
This  is  the  case  in  Maine,  New  Hampshire,  Vermont  and 
Massachusetts ;  and  the  debtor  is  allowed  a  year  to  redeem, 
except  in  Vermont,  where  it  is  only  six  months.  .  .  . 

In  those  States  in  which  the  sheriff  sells  the  land,  instead 
of  extending  it  to  the  creditor,  he  executes  a  deed  to  the 
purchaser ;  and  it  is  held,  that  the  sheriff's  sale  is  within  the 
statute  of  frauds,  and  requires  a  deed,  or  note  in  writing,  of 
the  sale,  signed  by  the  sheriff.  ...  In  the  New  Eng- 
iand  States,  with  the  exception  of  Rhode  Island,  the  sheriff's 
official  return  of  the  proceedings  under  the  execution,  con- 
stitutes the  title  of  the  creditor,  as  does  the  sheriff's  return 
of  the  inquisition  upon  the  elegit  in  England  ;  and  no  deed  is 
executed,  for  the  title  rests  upon  matter  of  record.  In  New 
York  every  judgment  and  final  decree  are  a  lien  on  the  real 
estate  of  the  debtor  from  the  docketing  of  the  same,  and 
affect  equally  his  after-acquired  lands. 


(c}  Bankruptcy. 

ARCHBOLD,  BANKRUPTCY  (loth  ed.,  1844),  216.  The 
general  rule  is  that  all  property  of  the  bankrupt  real  and 
personal  in  possession,  remainder,  reversion,  or  in  action 
merely,  to  which  he  was  entitled  at  the  date  of  the  act  of 
bankruptcy,  or  afterward,  is  vested  in  the  assignees  by  vir- 
tue of  this  appointment;  and  his  acts  thenceforth  with  ref- 
erence to  this  property  are  considered,  to  all  intents  and  pur- 
poses, as  the  acts  of  a  stranger. 

46  &  47  Vic.  (1883),  c.  52.  The  Bankruptcy  Act. — 
§  20.  Where  a  receiving  order  is  made  against  a  debtor, 


IN    FAVOR    OF    CREDITORS.  53! 

then,  if  the  creditors  at  the  first  meeting  or  any  adjourn- 
ment thereof  by  ordinary  resolution  resolve  that  the  debtor 
be  adjudged  bankrupt,  or  pass  no  resolution,  or  if  the  cred- 
itors do  not  meet,  or  if  a  composition  or  scheme  is  not  ac- 
cepted or  approved  in  pursuance  of  this  act,  within  four- 
teen days  after  the  conclusion  of  the  examination  of  the 
debtor,  or  such  further  time  as  the  court  may  allow,  the 
court  shall  adjudge  the  debtor  bankrupt ;  and  thereupon  the 
property  of  the  bankrupt  shall  become  divisible  among  his 
creditors  and  shall  vest  in  a  trustee. 

LOVELAND,  BANKRUPTCY  (1899),  283.  The  property  of 
the  bankrupt,  whatever  it  may  be,  remains  in  the  bankrupt 
until  a  trustee  is  appointed  and  qualified.  Thus,  where  no 
trustee  is  appointed  the  title  of  the  bankrupt  is  not  divested. 
.  .  .  The  title  of  the  bankrupt  in  the  interval  between 
the  adjudication  and  the  appointment  of  the  trustee  is  de- 
feasible, and  when  the  trustee  is  appointed  is  divested  as 
of  the  date  of  the  adjudication  of  bankruptcy.  During  this 
period  the  bankrupt  occupies  a  sort  of  fiduciary  relation  to 
his  creditors.  All  titles  derived  under  and  through  the 
bankrupt,  originating  during  this  interval,  are,  by  force  of 
law  and  without  regard  to  the  knowledge  or  motive  of  the 
claimant,  defeated  by  the  appointment  of  a  trustee. 

The  trustee     .     .     .     upon  his  appointment  and  qualifi- 
cation is  vested  by  operation  of  law,  without  a  deed  of  con- 
veyance, with  the  title  of  the  bankrupt  as  of  the  date  he  was 
\    adjudged  a  bankrupt.    B.  A.,  1898,  sec.  70,  a. 


CHAPTER  II. 

FOR  PUBLIC  PURPOSES. 

DIGBY,  HIST.  REAL  PROP.,  Ch.  X.,  §  3  (3).  There  are 
certain  modes  of  acquiring  land  by  what  may  be  called  a 
process  of  involuntary  alienation,  where  the  law  provides 
means  for  depriving  a  person  of  his  property  upon  proper 
compensation  being  made  to  him,  and  vesting  it  in  other 
persons,  or  in  a  corporation,  notwithstanding  any  opposition 
by  the  owner.  Thus  the  legislature  provides  machinery  for 
compelling  persons  to  divest  themselves  of  lands  which  may 
be  required  for  certain  purposes  of  public  utility ;  for  in- 
stance, a  railway,  public  elementary  schools,  or  certain  pub- 
lic works.  This  is  principally  effected  by  the  machinery 
provided  by  the  Lands  Clauses  Consolidation  Act.1  This 
act  contains  a  set  of  general  provisions,  which  are  usually 
incorporated  in  the  special  acts  authorizing  and  regulating 
individual  undertakings,  providing  for  a  mode  of  compul- 
sorily  vesting  the  property  required  in  the  company  or  other 
body  undertaking  the  public  works  by  the  giving  certain 
notices,  and  taking  the  requisite  steps  to  assess  and  pay  the 
proper  compensation  for  the  lands  taken. 

LEWIS,  EM.  DOM.,  §  i.  Eminent  domain  is  the  right  or 
power  of  a  sovereign  State  to  appropriate  private  property 
to  particular  uses,  for  the  purpose  of  promoting  the  general 
welfare.  It  embraces  all  cases  where,  by  authority  of  the 
State  and  for  the  public  good,  the  property  of  the  individual 
is  taken,  without  his  consent,  for  the  purpose  of  being  de- 
'8  Viet.,  c.  18. 


FOR    PUBLIC    PURPOSES.  533 

voted  to  some  particular  use,  either  by  the  State  itself  or  by 
a  corporation,  public  or  private,  or  by  a  private  citi- 
zen. .  .  . 

§  2.  ...  Sixth.  The  State  may  deprive  a  person 
of  his  property,  or  of  some  right  or  interest  therein,  for 
the  purpose  of  appropriating  the  same,  or  making  it  subser- 
vient, to  particular  uses.  Thus  private  property  is  taken 
and  held  by  the  State,  or  vested  in  public  corporations,  for 
the  public  use,  as  in  the  case  of  highways,  canals,  parks, 
public  buildings  and  the  like;  or  private  corporations, 
or  individuals,  are  authorized  to  institute  proceedings 
for  the  purpose  of  compelling  a  transfer  of  property  to 
themselves,  to  be  devoted  to  some  particular  use,  either 
of  a  public  nature,  such  as  railroads,  turnpikes,  etc., 
or  of  a  private  nature,  such  as  private  ways,  mills  and  the 
like. 

The  acts  which  are  described  and  included  under  this  last 
division  are  universally  spoken  of  as  pertaining  to  the  em- 
inent domain.  All  other  exercises  of  power  over  private 
property,  and  every  species  of  right  in,  and  control  and 
regulation  over,  property  of  a  public  nature,  may  properly 
be  referred  ...  to  some  other  of  the  sovereign  powers 
of  the  State.  Therefore,  eminent  domain  is  properly  limited 
in  its  application  to  the  appropriation  by  a  sovereign  State 
of  private  property  to  particular  uses,  as  the  public  welfare 
demands.  .  .  . 

§  3.  There  has  existed  and  still  exists  among  jurists 
a  difference  of  opinion  as  to  the  nature  of  the  power  of  em- 
inent domain.  Some  maintain  that  it  is  a  kind  of  reserved 
right,  or  supereminent  estate  or  interest  in  all  property 
vested  in  the  sovereign  power.  .  .  . 

We  conclude  .  .  .  that  eminent  domain  is  not  of  the 
nature  of  any  estate  or  interest  in  property,  reserved  or 
otherwise  acquired,  but  simply  a  power  to  appropriate  in- 
dividual property  as  the  public  necessities  require,  and 
which  pertains  to  sovereignty  as  a  necessary,  constant  and 
inextinguishable  attribute. 


534   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

18  WEND.  (N.  Y.),  57.  Whether  this  principle  be  de- 
nominated the  right  of  transcendental  propriety,  or  of  em- 
inent domain,  or,  as  is  more  properly  by  Grotius,  the  force  of 
supereminent  dominion,  it  means  nothing  more  or  less  than 
an  inherent  political  right,  founded  on  a  common  necessity 
and  interest,  of  appropriating  the  property  of  individual 
members  of  the  community  to  the  great  necessities  of  the 
whole  community.  This  principle  or  right  does  not  rest, 
as  supposed  by  some,  upon  the  notion  that  the  state  had  an 
original  and  absolute  ownership  of  the  whole  property  pos- 
sessed by  the  individual  members  of  it,  antecedent  to  their 
possession  of  it,  and  that  their  possession  and  enjoyment  of 
it  being  subsequently  derived  from  a  grant  by  the  sovereign, 
it  is  held  subject  to  a  tacit  agreement  or  implied  reservation 
that  it  may  be  resumed,  and  all  individual  rights  to  it  ex- 
tinguished by  a  rightful  exertion  of  sovereign  power.  Such 
a  doctrine  is  bringing  the  principles  of  the  social  system 
back  to  the  slavish  theory  of  Hobbes,  which,  however  plaus- 
ible it  may  be  in  regard  to  lands  once  held  in  absolute  own- 
ership by  the  sovereignty,  and  directly  granted  by  it  to  in- 
dividuals, is  inconsistent  with  the  fact  that  the  security  of 
pre-existing  rights  to  their  own  property  is  the  great  motive 
and  object  of  individuals  for  associating  into  governments. 
Besides,  it  will  not  apply  at  all  to  personal  property,  which 
in  many  cases  is  entirely  the  creation  of  its  individual 
owners ;  and  yet  the  principle  of  appropriating  private  prop- 
erty to  public  use  is  full  as  extensive  in  regard  to  personal 
as  to  real  property. — Per  Tracy,  Sen.,  in  Bloodgood  v.  M.  6* 
H.  R.  R.  Co.  (1837). 

U.  S.  CONST.  AMDTS.,  ART.  5.  ...  [No  person 
shall]  be  deprived  of  life,  liberty  or  property  without  due 
process  of  law,  nor  shall  private  property  be  taken  for  pub- 
lic use  without  just  compensation.1 

1  The  provision  of  the  New  York  Constitution  (Art.  I.  §  6)  is  in  the 
same  terms. — ED. 


C.  ESTOPPEL. 

LIT.,  §  599.  But  by  the  feoffment  of  tenant  in  taile,  fee 
simple  passeth  by  the  same  feoffment  by  force  of  the  liverie 
of  seisin,  &c. 

§  600.  But  by  force  of  a  release  nothing  shall  passe 
but  the  right  which  he  may  lawfully  and  rightfully  release, 
without  hurt  or  dammage  to  other  persons  who  .shall  have 
right  therein  after  his  decease,  &c.  So  there  is  great  di- 
versitie  betweene  a  feoffment  of  tenant  in  taile  and  a  re- 
lease made  by  tenant  in  taile. 

§  609.  For  if  I  lett  land  to  a  man  for  terme  of  his  life, 
&c.,  and  the  tenant  for  life  letteth  the  same  land  to  another 
for  terme  of  years,  &c.,  and  after  my  tenant  for  life  grant 
the  reversion  to  another  in  fee,  and  the  tenant  for  yeares 
attorne,  in  this  case  the  grantee  hath  in  the  freehold  but  an 
estate  for  terme  of  the  life  of  his  grantor,  &c.,  and  I  which 
am  in  the  reversion  of  the  fee  simple  may  not  enter  by  force 
of  this  grant  of  the  reversion  made  by  my  tenant  for  life, 
for  that  by  such  grant  my  reversion  is  not  discontinued,  but 
alwayes  remaines  unto  me,  as  it  was  before,  notwithstand- 
ing such  grant  of  the  reversion  .made  to  the  grantee,  to  him 
and  to  his  heires,  &c.,  because  nothing  passed  by  force  of 
such  grant,  but  the  estate  which  the  grantor  hath,  &c. 

§  610.  In  the  same  manner  is  it,  if  tenant  for  terme  of 
life  by  his  deed  confirme  the  estate  of  his  lessee  for 
yeares,  to  have  and  to  hold  to  him  and  his  heires,  or  release  to 
his  lessee  and  his  heires,  yet  the  lessee  for  yeares  hath  an 
estate  but  for  terme  of  the  life  of  the  tenant  for  life,  &c. 

Co.  LIT.,  330,  b.  Here  is  rehearsed  another  ancient  max- 
ime  of  the  common  law  touching  grants ;  and  hereby  it  ap- 


536   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

peareth  that  a  feoffment  in  fee  (albeit  it  be  by  parol)  is  of  a 
greater  operation  and  estimation  in  law,  than  a  grant  of 
a  reversion  by  deed,  though  it  be  inrolled,  and  attornement 
of  the  lessee  for  yeares  of  a  release  or  a  confirmation  by 
deed,  for  ,the  reasons  aforesaid.  .  .  . 

LIT.,  §  611.  But  otherwise  it  is  when  tenant  for  life  mak- 
eth  a  feoffment  in  fee,  for  by  such  a  feoffment  the  fee  simple 
passeth.  For  tenant  for  yeares  may  make  a  feoffment  in 
fee,  and  by  his  feoffment  the  fee  simple  shall  passe,  and  yet 
he  had  at  the  time  of  the  feoffment  made  but  an  estate  for 
terme  of  yeares,  &c. 

§  618.  And  note,  that  of  such  things  as  passe  by  way  of 
grant,  by  deed  made  in  the  countrie,  and  without  livery, 
there  such  grant  maketh  no  discontinuance,  as  in  the 
cases  aforesayd,  and  in  other  like  cases,  &c.  And  albeit  such 
things  bee  graunted  in  fee,  by  fine  levied  in  the  king's  court, 
&c.,  yet  this  maketh  not  a  discontinuance,  &c. 

Co.  LIT.,  332,  a.  Here  is  the  generall  reason  yeelded  of 
the  precedent  cases  and  the  like ;  for  that  it  is  a  maxime  in 
law,  that  a  grant  by  deed  of  such  things  as  doe  lie  in  grant, 
and  not  in  liverie  of  seisin,  doe  worke  no  discontinuance. 
But  the  particular  reason  is,  for  that  of  such  things  the 
grant  of  tenant  in  taile  worketh  no  wrong,  either  to  the  issue 
in  taile,  or  to  him  in  reversion  or  remainder ;.  for  nothing 
doth  passe  but  onely  during  the  life  of  tenant  in  taile,  which 
is  lawfull,  and  every  discontinuance  worketh  a  wrong  as 
hath  beene  said. 

WILLIAMS,  REAL  PROP.,  178.  The  delivery  of  possession 
which  always  took  place  in  a  feoffment,  rendered  it  an  as- 
surance of  great  power;  for  the  law  permits  one  who  has 
obtained  actual  possession  of  land  to  maintain  it  against  all 
others,  except  those  who  may  lawfully  claim  the  land  under 
a  prior  title.  If,  therefore,  a  person  shall  have  made  a  feoff- 
ment to  another  of  an  estate  in  fee  simple,  or  of  any  other 


ESTOPPEL.  537 

estate,  not  warranted  by  his  own  interest  in  the  lands,  such 
a  feoffment  would  have  operated  (as  it  was  said)  by  wrong. 
That  is  to  say,  it  would  have  conferred  on  the  feoffee  the 
Whole  estate  limited  by  the  feoffment,  and  would  have  en- 
abled him  to  maintain  the  seisin  actually  delivered  to  him 
against  all  but  those  whose  prior  title  was  displaced  by  the 
feoffment.  And  even  they  were  in  certain  cases  deprived  of 
all  right  to  enter  upon  the  land,  and  left  with  nothing  but  a 
right  to  bring  an  action  for  its  recovery.  Thus  if  a  tenant  in 
tail  or  for  his  own  life  should  have  made  a  feoffment  of  the 
lands  for  an  estate  in  fee  simple,  the  feoffee  would  not 
merely  have  acquired  an  estate  for  the  life  of  the  feoffor, 
but  would  have  become  seised  of  an  estate  in  fee  simple  by 
wrong.  In  the  case  of  a  tenant  for  life,  who  has  no  fee  and 
whose  position  in  early  times  was  that  of  lessee  rather  than 
owner,  such  a  feoffment  was  held  to  be  a  cause  of  forfeiture 
to  the  person  next  entitled  after  his  death ;  as  being  a  con- 
veyance of  such  person's  interest  to  another  without  his  con- 
sent. But  a  feoffment  by  tenant  in  tail  conferred  an  estate 
indefeasible  during  his  life.  At  the  present  day,  however, 
an  estate  by  wrong  can  no  longer  be  created  by  feoffment; 
an  act  of  1845  providing  that  a  feoffment  shall  not  have  any 
tortious  operation. 

STAT.  8  &  9  VICT.  ( 1845),  c.  106,  §  4.  A  feoffment,  made 
after  the  said  first  day  of  October,  one  thousand  eight  hun- 
dred and  forty-five,  shall  not  have  any  tortious  operation; 
.  .  .  and  the  word  "give"  or  the  word  "grant,"  in  a  deed 
executed  after  the  same  day,  shall  not  imply  any  covenant  in 
law  in  respect  of  any  tenements  or  hereditaments.  .  .  . 

N.  Y.  REAL  PROP.  LAW,  §  210.  .  .  .  A  greater  estate 
or  interest  does  not  pass  by  any  grant  or  conveyance  than 
the  grantor  possessed  or  could  lawfully  convey  at  the  time 
of  the  delivery  of  the  deed.  .  .  . 

RAWLE,  Cov.  FOR  TITLE,  §  241.  "An  estoppel  by  deed," 
says  Mr.  Bigelow,  .  .  .  "may  be  defined  in  a  strict 


538   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

sense  to  be  a  right  based  upon  a  preclusion  against  the  com- 
petent parties  to  a  valid  sealed  instrument  and  their  privies 
to  deny  its  force  and  effect  by  any  evidence  of  inferior  so- 
lemnity." 

§  242.  This  was  the  ordinary  and  personal  effect  of  an 
estoppel  by  deed.  But  it  had  also  a  much  higher  operation, 
which  was  in  certain  and  exceptional  cases  actually  to  trans- 
fer and  pass  an  estate ;  so  that  if  a  man  conveyed  to  another 
land  to  which  he  had  no  title,  any  after-acquired  title  would 
inure  to  the  latter  by  direct  operation  of  law,  and  become 
vested  in  him  in  the  same  manner  as  if  it  had  originally 
passed  to  him  by  the  assurance. 

§  243.  Now  it  must  be  carefully  observed  that  by  the 
common  law  there  were  two  classes  of  cases  in  which  an 
estate  thus  actually  passed  by  estoppel,  and  two  only.  The 
first  was  where  the  mode  of  assurance  was  a  feoffment,  a 
fine  or  a  common  recovery.  Such  was  their  solemnity  and 
high  character  that  they  always  passed  an  actual  estate,  by 
right  or  by  wrong,  and  as  against  the  feoffor  or  conusor  and 
his  heirs,  not  only  divested  them  of  what  they  then  had,  but 
of  every  estate  which  they  might  thereafter  by  possibility 
acquire,  and  this  doctrine  has  been  applied  in  modern  times. 
The  second  was  where  the  assurance  was  by  lease,  under 
which,  it  will  be  remembered,  estates  could  take  effect  in  fu- 
turo;  and  the  estoppel  seems  to  have  been  put  upon  the 
ground  of  such  having  been  the  contract  or  agreement  be- 
tween the  parties — the  same  contract  which  on  the  part  of 
the  lessor  implied  a  covenant  for  quiet  enjoyment  from  the 
word  demise,  and  on  the  part  of  the  lessee  implied  a  cov- 
enant for  payment  of  the  rent  from  the  words  yielding  and 
paying. 

§  244.  These  modes  of  assurance  were  the  only  ones  by 
which  an  after-acquired  title  was  actually  passed  by  direct 
operation  of  law  under  the  doctrine  of  estoppel.  Thus  a 
grant  or  a  release  had  not  this  effect.  They  only  operated 
upon  the  estate  which  the  grantor  or  releasor  actually  had, 
"and  therefore  if  a  man  grant  a  rent  charge  out  of  the  manor 


(  ESTOPPEL.  539 

of  Dale,  and  in  truth  he  hath  nothing  in  that  manor,  and 
after  he  purchases  the  manor,  yet  he  shall  hold  it  dis- 
charged,"1 and  this  applied  equally  to  a  release.  And  as  the 
conveyances  in  use  at  the  present  day — which  take  effect  by 
virtue  of  the  statute  of  Uses,  and  which  as  distinguished 
from  feoffments,  fines,  and  common  recoveries  were  called 
"  innocent  conveyances,"  viz.,  deeds  of  bargain  and  sale,  lease 
and  release,  etc. — pass  no  more  than  the  actual  estate  of  the 
party,  they  have  of  course  no  greater  effect  by  way  of  estop- 
pel than  the  common  law  grant  or  release. 

§  245.  Where,  however,  it  has  distinctly  appeared  in  such 
conveyance,  either  by  a  recital,  an  admission,  a  covenant,  or 
otherwise,  that  the  parties  actually  intended  to  convey  and 
receive,  reciprocally,  a  certain  estate,  they  have  obviously 
been  held  to  be  personally  estopped  from  denying  the 
operation  of  the  deed  according  to  this  intent. 

§  246.  There  was  then  an  ordinary  and  an  extraordinary 
effect  attached  to  an  estoppel.  The  one  was  personal  in  its 
character,  like  the  rebutter  in  a  warranty,  and  estopped  the 
grantor  and  his  heirs  from  doing  or  alleging  anything  con- 
trary to  the  tenor  and  effect  of  his  sealed  instrument.  This 
effect,  however,  was  purely  personal  as  against  him  or 
them;  the  remedy  being  sometimes  enforced  in  a  court  of 
law  and  for  the  avoiding  of  circuity  of  action  by  reason  of 
breach  of  covenant,  and  more  frequently  in  equity,  by  fur- 
ther assuring  to  the  grantee  the  estate  which  had  thus  been 
intended  to  be  conveyed.  But  it  never  operated  to  pass  an 
estate  by  direct  operation  of  law.  The  other — the  extra- 
ordinary— effect  possessed  the  high  function  of  actually 
transferring  every  estate,  present  or  future,  vested  or  con- 
tingent, to  the  feoffee,  conusee,  or  lessee,  according  as  the 
mode  of  assurance  employed  was  a  feoffment,  a  recovery,  a 
fine,  or  a  lease,  and  this  effect  was  peculiar  to  them  alone, 
there  being  no  authority  in  any  of  the  English  books  to 
show  that  it  was  produced  by  any  other  species  of  convey- 
ance. 

1  Perkins,  tit.  Grant,  §  65. 


54°   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

§  247.  This  sketch  of  some  of  the  principal  features  of 
the  doctrine  of  estoppel  by  deed  has  thus  been  made  as  in- 
troductory to  an  important  class  of  cases  which,  on  this  side 
of  the  Atlantic,  has  given  to  some  of  the  modern  covenants 
for  title,  and  especially  to  the  covenant  of  warranty,  the 
function  just  referred  to,  which  is  properly  attributable  only 
to  the  effect  of  an  estoppel  in  its  highest  sense. 

The  history  of  the  law  on  this  side  of  the  Atlantic  is  this. 
It  was  decided  in  two  early  cases  in  New  York  that  where 
one  by  deed  of  bargain  and  sale,  or  lease  and  release,  con- 
veyed land  to  which  he  had  no  title,  he  was  estopped  by  his 
deed  from  claiming  any  after-acquired  estate  in  it.1  It  does 
not  appear  in  the  report  of  the  cases  whether  the  deeds  did 
or  did  not  contain  covenants  for  title ;  but  the  decisions  were 
rested  on  the  authority  of  familiar  cases  decided  upon  fines 
and  leases. 

But  this  doctrine,  which  was  unsupported  by  early  au- 
thority, was  soon  after  abandoned,  and  it  was  held  by  the 
same  court,  reversing  the  cases  referred  to,  that  where  one 
conveyed  land  to  which  he  had  no  title,  by  deed  of  bargain 
and  sale  containing  no  covenants  for  title,  nor  intention  on 
the  face  of  the  deed  that  the  grantee  expected  to  become  in- 
vested with  a  certain  estate,  a  subsequently  acquired  title 
would  not  inure  to  the  benefit  of  the  grantee,  even  as  against 
the  grantor  and  his  heirs.  This  decision  has  been  almost  con- 
sistently followed,  and  a  large  class  of  cases  both  in  New 
York  and  throughout  the  United  States  has  established  the 
conclusion  that  as  a  general  rule,  and  apart  from  the  doctrine 
of  estoppel  caused  by  recital,  in  order  that  an  after-acquired 
estate  should  pass  by  estoppel,  it  is  necessary  that  the  deed 
should  contain  covenants  of  some  sort  or  kind.  And  while 
it  is  true  that  an  intention — shown  by  recital,  averment,  or 
otherwise,  that  a  certain  definite  estate  was  intended  to  be 
conveyed — will  generally  be  allowed  the  same  effect  as 
though  it  were  a  covenant,  yet  it  is  considered  that  the  pres- 
ence of  a  covenant  is  perhaps  the  strongest  evidence  that 

1  Jackson  v.  Bull,  I  Johns.  Cas.  81  ;  Jackson  v.  Murray,  12  Johns.  2OI, 


ESTOPPEL.  541 

such  was  the  intention  and  the  contract  of  the  parties.  But 
a  mere  release,  or  a  deed  of  quit-claim,  will  not  have  the 
effect  of  estoppel. 

§  248.  Where,  however,  the  deed  does  contain  such  re- 
cital or  averment,  and  more  especially  where  it  contains  cer- 
tain of  the  covenants  for  title,  it  has  been  held  by  a  large 
class  of  cases  that  as  a  general  rule  any  after-acquired 
estate  will  inure,  by  virtue  of  the  covenants,  to  the  party 
claiming  under  the  conveyance  and  his  heirs  and  assigns 
by  direct  operation  of  law,  with  the  same  effect  to  all  intents 
and  purposes  as  if  such  estate  had  originally  passed  by  the 
deed.  And  in  many  States,  the  doctrine  has  been  made  the 
subject  of  statutory  enactment,  and  the  legislation  is  to  a 
great  extent  both  recent  and  on  the  increase. 


D.   REGISTRATION. 

WILLIAMS,  REAL  PROP.,  242.  In  order  to  make  a  com- 
plete and  unavoidable  conveyance  of  lands  situate  in  Mid- 
dlesex or  Yorkshire  (including  the  town  and  county  of 
Kingston-upon-Hull),  a  memorial  of  the  deed  of  convey- 
ance must  be  duly  registered  in  the  county  register.  The 
registration  of  deeds  affecting  lands  in  these  counties  was 
rendered  necessary  by  statutes  of  the  reigns  of  Anne  and 
George  II.  These  acts  provided  that  all  deeds  should  be 
adjudged  fraudulent  and  void  against  any  subsequent  pur- 
chaser or  mortgagee  for  valuable  consideration,  unless  a 
memorial  of  such  deeds  were  duly  registered  before  the  reg- 
istering of  the  memorial  of  the  deed  under  which  such  sub- 
sequent purchaser  or  mortgagee  should  claim.  The  Courts 
of  Equity,  however,  held  that  a  purchaser  or  mortgagee 
of  land  in  a  register  county,  who  had  had  clear  pre- 
vious notice  of  a  prior  unregistered  assurance  affecting 
the  same  land,  and  yet  registered  his  own  deed  before 
the  other,  should  not  be  permitted  to  gain  any  priority 
over  the  persons  claiming  under  the  previous  assur- 
ance with  regard  to  the  equitable  estate  in  the  land ;  but 
should  hold  the  legal  estate  which  he  acquired  by  priority 
of  registration,  as  a  trustee  for  such  other  persons.  And 
this  doctrine  of  equity  still  prevails  with  respect  to  land  in 
Middlesex. 

N.  Y.  2  R.  S.,  756,  §  i.  Every  conveyance  of  real  estate, 
within  this  State,  hereafter  made,  shall  be  recorded  in  the 
office  of  the  clerk  of  the  county  where  such  real  estate  shall 
be  situated ;  and  every  such  conveyance  not  so  recorded 
shall  be  void  as  against  any  subsequent  purchaser,  in  good 


REGISTRATION.  543 

faith  and  for  a  valuable  consideration,  of  the  same  real  es- 
tate, or  any  portion  thereof,  whose  conveyance  shall  be  first 
duly  recorded. 

MASS.  PUB.  STAT.,  c.  120,  sec.  4.  A  conveyance  of  an 
estate,  in  fee  simple,  fee  tail,  or  for  life,  or  a  lease  for  more 
than  seven  years  from  the  making  thereof,  shall  not  be  valid 
as  against  any  person  other  than  the  grantor  or  lessor  and 
his  heirs  and  devisees  and  persons  having  actual  notice  of  it, 
unless  it  is  recorded  in  the  registry  of  deeds  for  the  county 
or  district  in  which  the  real  estate  to  which  it  relates  is  sit- 
uated. 

103  MASS.  REP.,  492.  The  formalities  which  shall  be 
deemed  indispensable  to  the  valid  conveyance  of  land  are 
prescribed  and  regulated  by  statute.  A  deed  duly  signed, 
sealed  and  delivered  is  sufficient,  as  between  the  original 
parties  to  it,  to  transfer  the  whole  title  of  the  grantor  to  the 
grantee,  though  the  instrument  of  conveyance  may  not  have 
been  acknowledged  or  recorded.  The  title  passes  by  the 
deed,  and  not  by  the  registration.  No  seisin  remains  in  the 
grantor,  and  he  has  literally  nothing  in  the  premises  which 
he  can  claim  for  himself,  transmit  to  his  heir  at  law,  or  con- 
vey to  another  person.  But  when  the  effect  of  the  deed 
upon  the  rights  of  third  persons,  such  as  creditors  or 
bona  fide  purchasers,  is  to  be  considered,  the  law  requires 
something  more,  namely,  either  actual  notice,  or  the  further 
formality  of  registration,  which  is  constructive  notice.  It 
may  not  be  very  logical  to  say  that,  after  a  man  has  literally 
parted  with  all  his  right  and  estate  in  a  lot  of  land,  there 
still  remains  in  his  hands  an  attachable  and  transferable  in- 
terest in  it,  of  exactly  the  same  extent  and  value  as  if  he  had 
made  no  conveyance  whatever.  But,  for  the  protection  of 
bona  fide  creditors  and  purchasers,  the  rule  has  been  estab- 
lished that  although  an  unrecorded  deed  is  binding  upon  the 
grantor,  his  heirs  and  devisees,  and  also  upon  all  persons 
having  actual  notice  of  it,  it  is  not  valid  and  effectual  as 


544   READINGS  IN  THE  LAW  OF  REAL  PROPERTY. 

against  any  other  persons.  As  to  all  such  other  persons,  the 
unrecorded  deed  is  a  mere  nullity.  So  far  as  they  are  con- 
cerned, it  is  no  conveyance  or  transfer  which  the  statute 
recognizes  as  binding  on  them,  or  as  having  any  capacity 
adversely  to  affect  their  rights,  as  purchasers  or  attaching 
creditors.  As  to  them,  the  person  who  appears  of  record 
to  be  the  owner  is  to  be  taken  as  the  true  and  actual  owner, 
and  his  apparent  seisin  is  not  divested  or  affected  by  any 
unknown  and  unrecorded  deed  that  he  may  have  made.  Gen, 
Sts.,  c.  89,  s.  3. — Per  Ames,  J.,  in  Earle  v.  Fiske  (1870). 


INDEX.  545 


INDEX. 


Absolute  ownership,  38,  39,  40. 

Actions,  real  and  personal,  8,  10;  quare  e  fecit  infra  terminem,  12} 

ejectment,  287. 
Adams  v.  Ross,  226. 
Adams  v.  Savage,  374. 
Adverse  possession,  457-469. 
Advowson,  14,  23,  27. 

Agricultural  land,  leases  of,  in  New  York,  136. 
Aids,  101,  104,  106;  how  affected  by  Stat.  12  Car.  II,  c.  24,  116,  117. 
Alienation,  415;  of  feuds,  60;  of  copyholds,  128;  of  fees  tail,  246-250; 

restraints  on,  63,  64,  101,  136,  261,  395;  license  for,  64,  102; 

forfeiture   for,    102. 

Aliena  solo,  rights  in,  22-37,  407-411,  525-529. 
Allodial  property,  7,  38,  39,  45,  49,  207;  in  the  United  States,  131; 

in  New  York,  135. 
Ancient  demesne,  118. 

Anglo-Saxon  law,  38,  44,  50,  51,  68,  124,  321,  450,  472. 
Annuities,  34. 

Appendant  servitudes,  28,  29. 
Appointment,  powers  of.    See  Powers. 
Appurtenant  servitudes,  28,  29. 
Assize,   mort  d' ancestor,   458,   467;   novel   disseisin,   61,   458,   467; 

Northampton,  467. 
Attainder,  471-474,  475-479- 
Attornment,  324,  430-432,  434-436. 


Bagott  v.  Orr,  409. 

Bankruptcy,  530-531 ;  Act,  530. 

Bargain  and  sale,  154,  503-508. 
Base  fee,  205,  211-219,  237. 
Bastard,  449,  451,  456. 
Benefice,  50. 

Blood,  corruption  of.     See  Attainder. 
Bloodgood  v.  M.  &  H.  R.R.  Co.,  534. 
Blundell  v.  Catterall,  407. 
Bookland,  44. 


546  INDEX. 

Borough  English,  85,  86. 
Boroughs*  customs  of,  85,  513. 
Bote.     See  Estovers. 
British  laws,  449. 
Burgage  tenure,  70,  85,  92. 
Burgess  v .  Wheate,  169,  367. 


Capite,  tenant  in,  49,     112,  114-117. 

Castle-gard,  81. 

Cestui  quc  use,  150,  172. 

Chancellor,  early  functions  of,  148. 

Chancery,  court  of,     149. 

Chattels,  12,  14,  17,  56;  joint  ownership  of,  188;  personal,  16; 

real,  12,  15,  284,  286.     See  Leaseholds. 

Chief  rents,  35. 

Child,  en  venire  sa  mere,  373. 

Chivalry,  tenure  in,  51,  69,  79,  80,  86,  93;  abolished,  112. 

Chudleigh's  Case,  140,  160,  346. 

Cole  v.  Lake  Co.,  227. 

Common,  tenancy  in,  186-191. 

Common,  rights  of,  23,  28-30,  499. 

Common  recovery,  426-428. 

Condition,  in  deed  and  in  law,  302 ;   expressed  and  implied,   305 ; 

precedent  and  subsequent,  306 ;  words  proper  to  make.  309- 

313 ;  void,  313 ;  restraining  alienation,  63. 
Conditional  estates,  300-315,  402;  rights  of  entry  in,  301,  401,  482- 

485. 

Conditional  fee,  210,  231-238. 
Conditional  limitation,  of  life  estate,  260;  of  fee  simple,  333.  364; 

distinguished  from  condition,  307,  310-313. 
Connecticut,  tenure  in,  135. 
Conquest,  Norman,  effects  of,  68. 
Consanguinity,  rules  of,  454. 
Contingent  devises,  346-350,  401. 

Contingent  remainders,  331,  333-346;  of  trust  estates,  400,  401. 
Contingent  uses,  346-350,  401. 
Continual  claim,  417,  468. 
Conveyances,  innocent,  484,  485  (see  Grant)  ;  tortious,  482-485. 

See  Feoffment,  Fine,  Common  Recovery. 
Coparceners,   192.   See  Parcenary. 
Copyhold,  1 1 8,  121-129. 
Copyholders,  72. 


INDEX.  547 

Cornage,  84,  87. 

Corodies,  33. 

Corporate  stock,  personal  property,  17. 

Corporations,  franchises,  32;  mortmain,  65;  escheat,  369,  474. 

Corporeal  hereditaments,  23,  24,  36. 

Court  Baron,  73. 

Court  leet,  73. 

Covenant  to  stand  seised,  153,  503. 

Coverture.     See  Marriage. 

Creditors,  rights,  38,  62,  401,  402-406,  525-531. 

Curtesy,  263-268;  in  uses,  152. 

Custom  and  prescription,  495-501. 

Customary  court,  73,   126. 

Customary  freehold,  118. 


D. 

Dedication,  446. 

Deed,  430,  512. 

Demesne,  39,  52,  207. 

Descent,  55,  412-415,  447-456;  canons  of,  454;  in  United  States,  456. 

Descent  cast,  468. 

Devise,  513-524;  by  custom,  513.     See  Will. 

Devise,  contingent,  346-350;  executory,  376-380. 

Dignities,  4,  24,  32. 

Discontinuance,  487. 

Disseisin,  413,  457-469. 

Distress,  281. 

Domain,  the  lord's,  70. 

Domesday,  68,  71. 

Dominum  dircctum,  39;  utile,  39. 

Donis  conditionalibus,  statute  dc,  234,  235,  236. 
Dower,  100,  268-278;  in  uses,  152;  effect  of    Statute  of  Uses  on,  155, 
159;  how  barred,  271,  273,  384. 


Earle  v.  Fiske,  543. 
Easements,  4,  22,  401. 
Edwards  v.  Sleater,  385. 
Ejectment,  287. 
Elegit,  estate  by,  306,  526,  528. 
Emblements,  259,  291-293. 
Eminent  domain,  532. 
Enrolments,  Statute  of,  505. 


548  INDEX. 

Entireties,  tenancy  by,  196-198. 

Entry,  rights  of,  301,  358-363,  4OI,  458,  459,  468,  469- 

Equitable  estates,  165-178,  401;  nature  of,  169;  limitation  of,  168, 
397-400 ; tail,  252. 

Equitable  ownership,  140-178. 

Equity,  courts  of.     See  Chancery. 

Equity  of  redemption,  404. 

Escheat,  107,  119,  210,  211,  363,  366-369,  401,  413,  4*5,  47O-474;  in 
New  York,  136 ;  of  corporate  lands,  369,  474. 

Escheat,  writ  of,  470. 

Escuage.    See  Scutage. 

Estate,  meaning  of  term,  200,  203. 

Estates,  199-402 ;  of  freehold,  199-280 ;  not  of  freehold,  281-208 ;  con- 
ditional, 300-315;  future,  316-369,  370-400.  See  Fee  Simple, 
Fee  Tail,  Life  Estates,  Leaseholds,  Tenancy  at  Will,  Tenancy 
at  Sufferance,  Equitable  Estates. 

Estoppel,  512,  535-541. 

Estovers,  common  of,  30,  258. 

Execution,  529-530. 

Executory  devises,  376-380. 

Executory  uses,  370-375. 

Expectant  estates,  362.    See  Estates,  Future. 

F. 

Farmer,  70. 

Fealty,  78,  103,  106;  tenure  by,  80,  107;  in  United  States,  131. 

Fee,  meaning  of  term,  39,  55,  206,  207;  acquires  heritability,  58. 

Fee  farm,  35,  98. 

Fee  simple,  201,  204-230;  meaning  of  term,  205;  pure,  204-211; 
limited,  211-219;  creation  of,  219-230;  base,  205;  conditional, 
210-212. 

Fee  tail,  201,  231-252;  nature  of,  238-249;  varieties  of,  240-243; 
in  United  States,  250-252;  after  possibility  of  issue  extinct, 
278-280;  conveyance  of,  324. 

Felony,  forfeiture  for,  471-474,  475-479,  483. 

Feoffee  to  uses,  150. 

Feoffment,  78,  317,  416-421 ;  meaning  of  term,  418 ;  tortious  opera- 
tion of,  419,  421,  482-485 ;  in  New  York,  421. 

Feud,  50,  55 ;  alienability  of,  60. 

Feudal  system,  38. 

Feudal  tenure,  46,  49.  50,  51,  78;  growth  of,  at  expense  of  allodial, 
45;  incidents  of,  100-108;  decay  of,  109-120;  burdensome 
character  of,  in;  how  affected  by  Stat.  12  Car.  II,  c.  24,  112, 
116-117;  abolished  in  New  York,  135. 


INDEX.  549 

Feudum  antiquum,  59; novum,  59. 

Fidei  commissa,  141,  146. 

Fine,  conveyance  by,  249,  422-426,  429. 

Fishing,  rights  of,  29,  407-410. 

Folkland,  44. 

Forfeiture,  415;   on  alienation,    102;   for  felony,    107,  475-479;   for 

waste,  479-481;  for  breach  of  condition,  482-485,  300-315. 
Franchise,  4,  24,  32. 

Frankalmoign,  51,  70,  78,  82,  106,  115,  118. 
Frauds,  Statute  of,  520. 
Free-bench,  273. 
Freehold,  descent  of,  14;  meaning  of  term,  24,  70;  estates  of,  199- 

280;  estates  not  of,  281-298;  in  futuro,  328;  in  United  States, 

381-382. 

Freehold  tenure,  78.     See  Fee  Simple,  Fee  Tail,  Life  Estates. 
Future  estates,  316-369,  370-400;  statutory,  381-382. 


G. 

Gavelkind,  85,  86,  92. 
General  occupant.    See  Occupancy. 
Georgia,  tenure  in,  135. 
Gifts,  simple  and  absolute,  204. 
Gloucester,  Statute  of,  479. 
Grand  serjeanty,  51,  83,  87,  115,  118. 
Grant,  322,  430,  509. 
Grant  and  Attornment,  324,  430-436. 

Guardian  in  chivalry,  104,  106 ; in  socage,  104,  106.    See  Ward- 
ship. 

H. 

Half-blood,  454,  456. 
Heirlooms,  17. 

Heirs,  56;  word  of  limitation,  59,  209,  35O-357;  in  fee  simple,  219- 

230;  in  fee  tail,  231,  243.    See  Descent,  Shelly's  Case,  Rule  in. 

Hereditaments,     24.      See     Corporeal     Hereditaments,     Incorporeal 

Hereditaments. 
Highways,  410. 
Homage,  78,  102,  103;  tenure  by,  114;  in  United  States,  132. 

—  ancestral,  82. 
Honour,  72.     See  Manor. 
Husband,  title  to  wife's  property,  486-491. 
Hypotheca,  404. 


550  INDEX. 


Idle  v.  Cook,  206. 

Immovables,  5,  41. 

Incidents  of  feudal  tenure,  100-108,  ill,  112,  116-117,  135. 

Incorporeal  hereditaments,  4,  22,  26,  36,  401;  conveyance  of,  430; 

creation  of,  495-501. 
Inheritance,  56;  estates  of,  201. 
Inheritance  Act,  454. 

Innocent  conveyances,  484,  485.     See  Grant. 
Intcresse  termini,  286. 
Iseham  v.  Morrice,  506. 


Johns  t-.  Johns,  16. 

Johnson  v.  Norway,  369. 

Joint  ownership,  179-198. 

Joint  tenancy,  179-185;  in  New  York,  185. 

Jointure,  155 ;  Stat.  Uses,  159,  274. 

Jus  proprietors,  463. 

K. 

Kent,  tenures  in,  85,  86,  135,  450. 
Knight's  fee,  79. 

Knight  service,  51,  69,  79,  80,  86,  93;  abolished,  112;  descent  of  lands, 
447- 


Land,  meaning  of  term,  24,  25. 

Lease,  281,  285;  and  Release,  324,  505-508,  509. 

Leaseholds,  origin  of,  12,  13;  descent  of,  14,  286;  estates,  281-289; 

assignment  of,  332. 
Leonard  v.  Burr,  218,  365. 
Liberty.     See  Honour. 
License.     See  Alienation. 
Life    estates,    253-280;    conventional,    253-262;    legal,    263-280;    fur 

aittre  vie,  262 ;  occupancy  of,  492-494 ;  forfeiture  of,  482-485. 

See  Curtesy,  Dower,  Fee  Tail  after  Possibility,  etc. 
Life  tenant,  powers  of,  261. 

Limitation,  collateral ;  special.     See  Conditional  Limitations. 

Limitations,  Statute  of,  458.  459,  469. 


INDEX.  551 

Livery  of  seisin,  201,  317,  416-421;  in  deed,  417;  in  law,  417:  in 

United  States,  381. 
Lord,  rights  of,  68. 


M. 

Magna  Carta,  60,  100,  101,  409,  475. 

Manors,  68-73;  in  United  States,  130. 

Marlborough,  Statute  of,  479. 

Marriage,  the  landlord's  right  of,  100,  101,  103,  104,  114. 

Marriage,  title  by,  486-491. 

Married   women,   property   rights  of,   486-491 ;   separate  estate  of, 

489-491. 

Maryland,  tenure  in,  135. 

Massachusetts,  tenure  in,  135 ;  qualified  fees  in,  219. 
Merchants,  Statute  of,  306,  525-529. 
Merger,  323. 

Merton,  Statute  of,  101,  451. 
Mesne  lord,  53. 
Mildmay's  Case,  247. 
Military  service,  78. 
Military  tenure,  86,  93;  abolished,  112. 

Tenures,  Statute  of,  12  Car.  II,  c.  24,  112;  effects  of,  116,  117. 

Mort  d'ancestor,  458,  467. 
Mortgage,  17,  402-406. 
Mortmain,  60,  62,  65,  145,  147. 
Movables,  5,  41;  descent  of,»s6. 
Murphy  v.  City  of  Brooklyn,  408. 


N. 

New  York,  tenure  in,  134-138. 
Nicoll  v._  N.  Y.  &  E.  R.R.  Co.,  360. 
Norman  Conquest,  effects  of,  68. 
Notice  to  quit,  294,  295. 
Novel  disseisin,  writ  of,  61,  458,  467. 


o. 

Occupancy,  260,  415,  492-494. 
Offices,  4,  24,  31. 

Ownership,  rights  of,  36;  absolute  v.  feudal,  38,  39,  41:  beneficial, 
146;  requisites  of,  462-466;  rights  less  than,  401-411. 


552  INDEX. 

P. 

Parcenary,  192-195. 

Particular  estate,  210,  327. 

Partition.     See  Joint  Ownership. 

Pasture,  common  of,  28. 

Pennsylvania,  tenure  in,  134,  135,  138,  139,  215,  365. 

Perpetuities,  381-396;  New  York  Statute  of,  395. 

Personal  actions,  8-1 1. 

Personal  property,  12-17,  56,  188. 

Personam,  rights  in,  I. 

Petit  serjeanty,  70,  84,  92;  how  affected  by  12  Car.  II,  120. 

Pews,  17. 

Pignus,  404. 

Piscary,  common  of,  29,  407-410. 

Possession  and  ownership,  462;  and  seisin,  75. 

Possibility  of  reverter,  211-219,  363-366. 

Powers  of  appointment,  383-390,  401 ;  New  York  Statute  of,  388 ; 

of  life  tenant,  261. 

Prescription,  31,  415,  495-501 ; Act,  500. 

Primer  seisin,  519. 

Primogeniture,  56,  447-456. 

Procreation,  words  of,  243. 

Profits  a  prendre,  4,  22-37,  401. 

Property,  allodial  and  feudal,  7;  classification  of,   i,  3,   5,  8,   10; 

elements  of,  462-466.     See  Real  Property,  Personal  Property. 
Public  rights,  407-411. 
Pur  autre  vie.    See  Life  Estate.  , 

Purchase,  412-415. 

Q. 

Quart  e]ecit,  writ  of,  287. 

Que  estate.  497. 

Quia  Emptores,  Statute  of,  61 ;  effects  of,  65,  67,  109,  120,  209,  211, 
214,  364;  in  United  States,  136-139;  in  New  York,  136;  and 
fees  tail,  215 ;  and  modern  tenures,  325 ;  and  escheat,  368,  474. 

Quit  rent,  119,  120,  127. 


R. 


Rack-rent,  35. 

Rangeley  v.  Midland  Ry.,  410. 
Rawley  v.  Holland,  374. 
Real  actions,  8-n. 


INDEX.  553 

Real  property,  analysis  of,  23,  24. 

Recording  deeds,  542-544. 

Recovery,  common,  248,  426-428. 

Redemption,  equity  of,  404. 

Re-entry.     See  Entry. 

Registration,  542-544. 

Release,  283,  323,  437-441 ;  to  tenant  at  sufferance,  296. 

Relief,  56,  100,  101,  103,  106;  how  affected  by  12  Car.  II,  116,  117. 

Religious  houses.    See  Mortmain. 

Remainder,  23,  210,  321,  326-357 ;  construction  of,  373-375 

contingent,  331,  333-346.    See  Contingent  Uses. 

vested,  326-333. 

Rent,  4,  23,  33; service,  34,  82;  in  New  York,  136;  —charge, 

35 ; seek,  35 ; of  assize,  35. 

Res  mancipi,  5 ; nee  mancipi,  5. 

Reversion,  23,  56,  321-325. 

Reverter,  possibility  of,  211-219,  363-366,  401. 

Revocation.    See  Powers  of  Appointment 

Rhode  Island,  tenure  in,  135. 

Right  of  entry,  301,  358-363,  4OI. 

Rights  in  alieno  solo.    See  Alieno  Solo,  Rights  in. 

Rights  in  personam,  I ; in  rem,  i. 

Rivers,  408. 

Roman  law,  classification  of  property  in,  3,  5 ;  uses  in,  141,  145,  333 ; 

pledge  in,  404. 
Rosse's  Case,  256. 


Scutage,  78,  79,  81,  87,  103;  becomes  obsolete,  no;  abolished,  114. 

Sea,  Seashore,  407,  409. 

Seisin,  57,  77,  466;  and  possession,  74,  75,  319;  of  future  estates,  317. 

Serjeanty,  78,  83;  commuted  for  socage,  109. 

Services,  50,  78. 

Servitudes,  4,  22,  495. 

Shelly' s  Case,  350; rule  in,  209,  35O-357- 

Shieffelin  v.  Carpenter,  444. 

Shifting  uses,  371,  372. 

Smith  v.  Littlefield,  298. 

Socage,  meaning  of  term,  81,  90,  98. 

Socage  tenure,  70,  78,  79,  80,  89,  96,  118;  incidents  of,  105-107; 
growth  of,  109-112;  how  affected  by,  12  Car.  II,  116,  117;  in 
United  States,  130;  descent  in,  447-451-  See  Villein  Socage. 

Sokeman,  69,  99. 

South  Carolina,  tenure  in,  139,  365. 


554  INDEX. 

Special  occupant.    See  Occupancy. 

Springing  uses,  371,  372. 

Statute  Merchant,  306,  525-529. 

Statute  Staple,  306,  525-529. 

Statutory  future  estates,  381-382. 

Subinfeudation,  49,  52;  abolished,  62;  in  United  States,  136-139. 

Subpoena,  129,  150. 

Sufferance,  tenant  by,  295,  296-299. 

Surrender,  442-445. 

Symson  v.  Turner,  165. 

T. 

Tail.    See  Fee  Tail. 
Taltarum's  Case,  248. 
Tenancy  at  sufferance,  296-299. 

at  will,  290-295. 

in  common,  186-191. 

Tenant,  meaning  of  term,  46,  49. 

• in  tail  after  possibility  of  issue  extinct,  278-280. 

Tenement,  24,  49;  free  and  unfree,  78;  freehold,  199. 

Tenure,  38,  39,  46,  49,  50,  51 ;  defeudalization  of,  109-120;  in  United 

States,  130-139. 

Term  of  years,  281-289.     See  Leasehold. 
Tithes,  4,  23,  28,  37.  * 

Title,  412-544;  elements  of,  462-466. 
Tortious  conveyances,  482-485. 
Transmutation  of  possession,  152. 
Trinoda  necessitas,  45. 
Trusts,  165-178,  397-400;  implied,  169;  limitation  of,  397-400;  New 

York  Statute  of,  177. 
Turbary,  common  of,  29. 

u. 

United  States,  tenure  in,  130. 

Universalist  Society  v.  Boland,  217. 

Uses  of  land,  140-178;  contingent,  346-350,  371,  373-374;  executory, 

370-375;    resulting,    154;    shifting,    371,    372;    springing,    371, 

372;  revocation  of.     See  Powers. 
Uses.    Statute  of,    156 ;   conveyances  under,   502-508 ;   jointure,    159, 

274;  operation  of.   160-164;  m  Ohio,  382;  New  York  statute 

of,  159- 
Usufructus,  141,  146. 


Van  Rensselaer  v.  Hays,  136. 
Villeins,  24,  71,  124. 
Villein  socage,  90,  122. 
Villenage,  78,  121. 
Virginia,  tenure  in,  135. 


INDEX.  555 

V. 


w. 


Wardship,  100,  103,  104,  106;  abolished,  114. 
Warranty,  204,  234,  246. 

Waste,  479-481 ; King's  right  to,  473,  475,  476. 

Water,  25. 

Watercourses,  37,  408. 

Water?,  public,  407. 

Ways,  30. 

Westminster  I.,  Statute  of,  101. 

II.,  Statute  of,  61,  235,  271. 
III.,  Statute  of,  61.    See  Quia  Emptores. 
Widow.    See  Dower,  Free  Bench. 
Wife,  estate  of,  486-491 ;  separate  estate,  489-491. 
Will,  estates  at,  290-295;  in  New  York,  295. 
Will  ion  v.  Berkley,  232,  238. 
Wills,  of  uses,  154;  under  the  statutes,  513-524. 

Statute  of  (32  Hen.  VIII,  c.  I.),  513,  516,  517,  518. 

Act  (7  Wm.  IV.  &  I  Viet,  c.  26),  520. 

Witenagemot,  44. 
Wyman  v.  Brown,  511. 

Y. 

Year  to  year,  estates  from,  293-295. 

Years,  estates  for,  281-289.    See  Leaseholds. 


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UNIVERSITY  OF  CALIFORNIA 

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